State ex rel. Bates v. Savage

• Decision Date: 01 November 1949
• Docket Number: 7 Div. 47.
• Citation: 42 So.2d 695,34 Ala.App. 633
• Parties: STATE ex rel. BATES v. SAVAGE.
• Court: Alabama Court of Appeals

42 So.2d 695

34 Ala.App. 633

STATE ex rel. BATES v. SAVAGE.

7 Div. 47.

Alabama Court of Appeals

Nov. 1, 1949

A. A. Carmichael, Atty. Gen., and Bernard F Sykes, Asst. Atty. Gen., for petitioner.

Hugh Reed, Jr., of Centre, for respondent.

HARWOOD Judge.

This is a proceeding in mandamus against Hon. F. M. Savage, as Judge of the Cherokee County Law and Equity Court.

The original petition for mandamus shows that on 6 April 1949 one Kenneth G. Laney pleaded guilty before the respondent, as judge aforesaid, to the offense of driving a motor vehicle on the highways of this State while drunk or intoxicated. Respondent, as said judge, imposed a fine of $100.00 as punishment. In his order imposing the fine the respondent made the following provision 'Driver's license not suspended or revoked.'

Thereafter on or about 28 May 1949 the petitioner, Bankhead Bates Director of the Department of Public Safety of this State, received notice from the clerk of said court of Laney's conviction as aforesaid, which notice indicated that no appeal had been perfected. Thereupon on 9 June 1949 the petitioner ordered the driving license of said Laney revoked, the respondent having failed to secure Laney's license upon his conviction.

On 18 June 1949 Laney filed a petition in the Cherokee County Law and Equity Court praying that the order issued by petitioner revoking Laney's driving license be annulled, and that Laney be permitted to continue to operate a motor vehicle on the highways of this State. On the day said petition of Laney was filed the respondent entered an order setting the petition down for hearing on 18 July 1949, and further provided that Laney be permitted to retain his driver's license pending final determination of his petition.

Upon receiving notice of said order this petitioner filed a motion seeking dismissal of Laney's petition, and vacation of the order of 18 June 1949.

Thereafter, in the hearing of Laney's petition on 18 July 1949, this petitioner timely filed several appropriate pleadings challenging the jurisdiction of the Cherokee County Law and Equity Court to hear and determine Laney's petition.

The court ruled adversely to this petitioner, Bankhead Bates, on his various pleadings and decreed that Laney be authorized to continue to drive a motor vehicle on the highways of this State, and that he keep and retain his driver's license.

This petition for mandamus questions the validity of the above said order, and prays that this court direct the respondent, as judge of the Cherokee County Law and Equity Court, to vacate that part of his order permitting Laney to retain his driver's license.

Shortly after the filing of this petition an alternative writ was directed to respondent requiring him to show cause in this court at 3:00 P.M. on 13 September 1949, why the writ of mandamus should not issue as prayed.

Respondent did not appear, nor did he file an answer. He has however timely filed a demurrer to the petition, and a motion to quash the alternative writ issued by this court. Numerous grounds are assigned to both the demurrer and the motion to quash. Some of the grounds to each pleading tend to raise the same general legal propositions, and can be discussed jointly. Respondent's diligent counsel has also filed a brief and argument in support of these pleadings and has discussed several, but not all of the grounds assigned. It is our opinion that those grounds not discussed by appellant's counsel are without merit, and we likewise will refrain from a discussion of them. The following points with possible merit are raised by respondent's demurrer and motion.

First: That mandamus is not an appropriate remedy for relief in this case.

This contention is without merit. Mandamus will be awarded to require a trial judge to vacate and annul a void order or decree. Ex parte Smith, etc., 30 Ala.App. 24, 200 So. 114; State ex rel. Attorney General v. Brewer, 19 Ala.App. 330, 97 So. 777, certiorari denied, Ex parte Brewer, 210 Ala. 229, 97 So. 778; Ex parte McFry, 218 Ala. 21, 117 So. 464; State ex rel. Attorney General v. Judge of Eighth Judicial Circuit, 142 Ala. 87, 38 So. 835, 110 Am.St.Rep. 20; State ex rel. Pinney v. Williams, 69 Ala. 311.

Second: That it affirmatively appears that more than 15 days had elapsed since the rendition of the judgment of 18 July 1949, and that under the local act creating the Cherokee County Law and Equity Court said court loses control over its judgments after the expiration of 15 days from their rendition; therefore the rule nisi should be quashed since the respondent is unable to perform the alternative act required.

This contention is likewise without merit. A judgment void on its face may be annulled at any time, and a trial court has inherent authority to vacate such void judgment at any time after its rendition. Gibson v. Edwards, 245 Ala. 334, 16 So.2d 865; Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116. Only an unreasonable delay is ground for dismissing a petition of the nature of the present one, Folmar v. Brantley, 238 Ala. 681, 193 So. 122, and it is apparent on the face of this record that it cannot be rationally asserted that this petitioner has acted tardily.

Third: The respondent contends that the 1947 amendment to Section 2, Title 36, by implication repeals certain portions of Section 68, Title 36, Code of Alabama 1940, and thereby authorizes the action taken by respondent in continuing Laney's possession of his driver's license.

Prior to the 1947 amendment Section 2 provided that upon conviction of a person charged with driving while intoxicated that the court, as additional punishment 'must prohibit the person so convicted from driving any motor vehicle upon the public highways of this state for a period not to exceed one year.'

As amended in 1947, se...