Taylor v. Taylor
| Decision Date | 03 January 1973 |
| Citation | 271 So.2d 503,49 Ala.App. 306 |
| Parties | Leilani Bozeman TAYLOR v. Cherry TAYLOR, a minor, age 14, et al. Civ. 23. |
| Court | Alabama Court of Civil Appeals |
Calvin M. Whitesell, Montgomery, for appellant.
J. Paul Lowery, Montgomery, for appellees.
On July 2, 1971, a default judgment was entered in the Circuit Court of Montgomery County in favor of appellee and against appellant.
On July 22, 1971, appellant herein filed the following motion:
'MOTION TO SET ASIDE THE DEFAULT JUDGMENT
'Comes now Leilani Bozeman Taylor, the Defendant in the above styled cause and moves the Court to set aside the default judgment rendered in the above styled cause and as grounds therefor asserts the following:
'WHEREFORE, THE PREMISES CONSIDERED, the Defendant prays that the Court will set aside the default judgment and reinstate this cause to the docket.'
In February of 1972, appellant filed, no action being taken by the trial court on the above motion, the following document:
'AMENDED MOTION FOR REHEARING
'Comes now Leilani Bozeman Taylor, the Defendant in the above styled cause, by and through her attorney, Calvin M. Whitesell, and moves the Court to grant her a rehearing in the above styled cause pursuant to Title 7, Section 279, Code of Alabama, 1940, as amended, and as ground therefor would show unto this Court as follows:
'WHEREFORE, THE PREMISES CONSIDERED, the Defendant prays that the Court will grant her a rehearing in this cause and upon a hearing to set aside the default judgment rendered in this cause and reinstate this cause to the docket.'
On May 26, 1972, the trial court entered the following order:
'ORDER
'The motion by the Defendant in this case to set aside the judgment heretofore entered in this cause is not well taken and is due to be denied.
'It is ORDERED and ADJUDGED that the same is hereby denied.
'DONE this the 26 day of May, 1972.
's/ Eugene W. Carter
Fifteenth Judicial Circuit
'Filed May 26, 1972.'
From this order appellant takes this appeal, and argues that the above motions are motions filed pursuant to Tit. 7, § 279, Code of Alabama 1940, commonly referred to as the Four Month Statute, and are not motions filed pursuant to Tit. 13, § 119, Code of Alabama 1940. Appellant has one assignment of error; to wit, the trial court erred in failing to grant the defendant's motion for rehearing.
Appellee contends in the alternative that the motions are filed pursuant to Tit. 13, § 119, Code of Alabama 1940, or even if said motions are pursuant to the Four Month Statute, they are insufficient and the trial court was not in error in refusing to hold a hearing on the merits and denying the motions.
The record clearly reveals that if the motions are to be considered under Tit. 13, § 119, Code of Alabama 1940, then the motions became discontinued as there are no orders from the trial court continuing same after their original filing in July 1971. See Tit. 13, § 119, Code of Alabama 1940.
However, the motions as seen from above could have been considered as motions filed pursuant to Tit. 7, § 279, Code of Alabama 1940, and we will so consider same.
A person seeking to set aside a judgment or decree must allege by specific averments that he has a meritorious defense and in what the same consists. This is true whether the relief is sought at law on motion or by bill in equity. See Ex parte B. D. Atkinson, 40 Ala.App. 664, 120 So.2d 923; Fletcher v. First Nat. Bank of Opelika, 244 Ala. 98, 11 So.2d 854; Union Indemnity Co. v. Goodman, 225 Ala. 499, 144 So. 108; 13 Ala.Dig., Judgment, k 379(1), 405, 447(1), 460(1)(6).
Here, in this instance, both the original motion and the amended motion are but bare assertions that defendant has a...
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