Thomas v. Davis

• Decision Date: 30 June 1916
• Docket Number: 6 Div. 126
• Citation: 72 So. 365,197 Ala. 37
• Parties: THOMAS et al. v. DAVIS.
• Court: Alabama Supreme Court

72 So. 365

197 Ala. 37

THOMAS et al. v. DAVIS.

6 Div. 126

Supreme Court of Alabama

June 30, 1916

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Bill by Levi R. Davis against Willie Thomas and others, to cancel and annul a deed. From a judgment overruling demurrers to the bill, and entering the decree pro confesso, respondents appeal. Reversed and remanded.

Norman Gunn and J.B. Powell, both of Jasper, for appellants.

Ray &amp Cooner, of Jasper, for appellee.

McCLELLAN J.

The bill in this cause was filed on the 17th day of November 1913. On the 15th day of December, 1913, the respondents filed their demurrer to the bill. On that day (December 15 1913), the circuit judge signed and filed with the register the following decretal order:

"This cause, coming on to be heard, is submitted upon demurrer to bill; being duly considered, it is the order judgment, and decree of the court that the demurrer be, and the same is hereby overruled.

"The defendants are allowed 30 days in which to answer said bill, and the defendants are ordered to attach a copy of said paper complained of to their answer, or to deliver the same to the register of this court for the inspection of complainant's attorneys."

The respondents having failed to file an answer to the bill, a decree pro confesso was entered by the circuit judge on the 21st day of January, 1914.

By the act approved August 2, 1907 (Local Acts, 1907, pp. 723-725), equity jurisdiction was conferred upon the circuit court in the counties of Walker and Winston. It seems to have been accepted that the act mentioned effected to clothe the circuit judge, as doubtless was its purpose, with the full powers and authority exercised by the chancellor. This act provides for the call of the equity dockets of the circuit court of Walker county on the "second Monday in March and September, of each year, and may continue one week," and, further, "that the chancery cases in the said circuit courts of Walker and Winston counties may be heard and passed upon at any other time than the time mentioned whenever the said circuit court is in session." The act approved November 23, 1907, fixing the time for holding the circuit court in Walker county (Local Acts, Spec.Sess. 1907, p. 23), so far as presently pertinent provides:

"Section 1. That the courts in the counties of Walker and Winston, composing the Fourteenth judicial circuit of the state of Alabama be held in each year as follows: 1. In the county of Walker; (1) The first term shall commence on the second Monday in January, and may continue until, but not including, the third Monday in March; (2) the second term shall commence on the second Monday in April, and may continue until, but no including, the first day of July; (3) the third term shall commence on the second Monday in October, and may continue until, and including, the second Saturday in December."

"Sec. 3. The equity docket of said circuit court in either Walker or Winston county may be called at any time fixed therefor by the judge of said court, provided the said equity docket must be called while the court is in session as above set out.

"Sec. 4. That in said counties of Walker and Winston the court may be organized at any time during the

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