Wiggins v. Steiner

• Decision Date: 21 June 1894
• Citation: 16 So. 8,103 Ala. 655
• Parties: WIGGINS v. STEINER ET AL.
• Court: Alabama Supreme Court

16 So. 8

103 Ala. 655

WIGGINS v. STEINER ET AL.

Supreme Court of Alabama

June 21, 1894

Appeal from circuit court, Butler county; John R. Tyson, Judge.

Ejectment by J. M. Steiner and others against B. J. Wiggins. Judgment for plaintiffs. Defendant's petition to vacate judgment denied, and he appeals. Affirmed.

Gamble & Powell, for appellant.

J. C Richardson, for appellees.

COLEMAN J.

At the June term, 1892, of the circuit court of Butler county Steiner & Co., appellees, recovered a judgment in ejectment against Wiggins, the appellant; and in may, 1893, the clerk issued a writ of possession, commanding the sheriff to put the plaintiffs in possession of the land. Thereupon, the appellant, Wiggins, who was the defendant in the ejectment suit, filed a petition in the circuit court, and prayed the court to set aside and annul the judgment in ejectment, and also the writ of possession issued by the clerk. At the spring term of the court upon motion of the appellees, the petition was denied, and stricken from the file. All the grounds, except one, upon which the petition was predicated required extrinsic proof-facts dehors the record-to sustain them. the law is well settled that a court is without power to alter, vary, or annul final judgments or decrees after the close of the term at which they were rendered, except as to mere clerical errors or omissions. It is equally well settled that a court at any subsequent term may make an order vacating and annulling a judgment or decree void upon its face. Buchanan v. Thomason, 70 Ala. 402; Carlisle v. Killebrew (Ala.) 8 South. 355; Baker v. Barclift, 76 Ala. 417; Kohn v. Haas (Ala.) 12 So. 577.

One of the grounds stated in the petition is that the judgment in the ejectment suit, which the petition purported to set out was void upon its face. The judgment, as shown in the petition, after stating the case and character of the action is as follows: "Came the parties by attorneys, and, issue being joined thereupon, came a jury of good and lawful men, to wit, M. A. Kay and eleven others, who, being duly sworn and impaneled, on their oaths do say, 'We, the jury, find for the plaintiff for the lands sued for.' It is therefore considered by the court that the plaintiffs recover of the defendant the lands sued for, to wit, E. 1/2 of S.E. 1/4 & S.W. 1/4 of S.E. 1/4 & S.E. 1/4 of S.W. 1/4 section 26, township 7, range 13, for which let writ of possession issue." The precise objection to the judgment is that it fails to designate the county or district in which the land is situated, and that the court must take judicial knowledge, that there are two bodies of land lying in the state of Alabama, answering the description contained in the judgment,-one...