Washington County v. Porter

• Decision Date: 20 December 1900
• Parties: WASHINGTON COUNTY v. PORTER.
• Court: Alabama Supreme Court

29 So. 185

128 Ala. 278

WASHINGTON COUNTY v. PORTER.

Supreme Court of Alabama

December 20, 1900

Appeal from circuit court, Washington county; William S. Anderson Judge.

Action by B. F. Porter against Washington county. From a judgment for plaintiff, defendant appeals. Affirmed.

This was a suit brought by the appellant against Washington county to recover compensation for recopying a record book of mortgages in the office of the judge of probate of Washington county. The material facts of the case, necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. After the rendition of a judgment by default in favor of the plaintiff, the defendant moved the court to set aside said judgment. The grounds of this motion insisted upon are sufficiently stated in the opinion. The motion was overruled, and the defendant duly excepted. Upon the execution of a writ of inquiry, it was shown by the evidence that the plaintiff had rendered the services in obedience to a resolution of the court of county commissioners of Washington county. The court declined to allow the plaintiff to file a plea after the judgment by default was rendered. Upon the introduction of all the evidence in the execution of the writ of inquiry, the court instructed the jury as follows: "That the judgment by default had been rendered for the plaintiff, and that all they had to do was to assess the plaintiff's damages that such damages would be what they found from the evidence to be the value of the work done by the plaintiff for the defendant." Thereupon the defendant requested the court to give the general affirmative charge in its behalf, and duly excepted to the court's refusal to give the charge as asked. Upon the return of a verdict by the jury assessing the plaintiff's damages, the court rendered judgment accordingly. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Chas L. Bromberg and C. C. Kimbrough, for appellant.

TYSON J.

This action was brought by plaintiff to recover compensation for recopying a certain record book in his office during his term as probate judge, which he was ordered to do as shown by a minute entry on the record of the commissioner's court. Section 3366 of the Code authorizes the rendition of this service, and requires the court of county commissioners to allow a reasonable compensation therefor. The necessity for recopying the record is a matter with which we have nothing to do. A determination of that question is, under the statute, exclusively one for the court of county commissioners.

The complaint contains three counts, and there is an averment that the claim sought to be enforced by each of these counts was presented, after being itemized and verified as required by law, to the court of county commissioners, which was rejected by it as shown by an order of that court. A judgment by default was rendered against the defendant, and it is here urged that this judgment is irregular or void for two reasons: First, the judgment entry contains no recital that proof was made that the claim had been presented in the manner prescribed by the statute and disallowed. This contention is based upon section 13 of the Code. This section requires a presentation of the claim and its disallowance before suit is brought, and it is necessary that the complaint allege such presentation and disallowance, for the obvious reason that the county is not in default until this has been done. Shinbone v. Randolph Co., 56 Ala. 183; Schroeder v. Colbert Co., 66 Ala. 137. Where, however, it is alleged, if the defendant appear, and by its pleadings put in issue this allegation, the plaintiff would be required to prove it. But, if the defendant should confess the allegation by its pleadings, no proof of it would be necessary on the part of the plaintiff. A failure to appear on the part of the defendant is an admission of the plaintiff's cause of action as laid in the declaration. McGehee v. Childress, 2 Stew. 506; Cater v. Hunter, 3 Ala. 30; Drake v. Johnston, 50 Ala. 1. "A judgment by default is, in our practice, a judgment for the want of an appearance. It is distinguished from other judgments by the recital, 'The defendant being called, came not, but made default.' An appearance in a civil suit at law is purely voluntary. No process can issue to compel it, nor can the plaintiff, in any event enter it for the defendant. A defendant may decline to make it, incurring no other consequence than an admission of the plaintiff's cause of action as averred in the complaint, and a judgment...