Wilkinson v. Cohen, 6 Div. 262

• Decision Date: 18 October 1951
• Docket Number: 6 Div. 262
• Citation: Wilkinson v. Cohen, 257 Ala. 16, 57 So.2d 108 (Ala. 1951)
• Parties: WILKINSON et al. v. COHEN.
• Court: Alabama Supreme Court

Page 108

57 So.2d 108

257 Ala. 16

WILKINSON et al. v. COHEN.

6 Div. 262.

Supreme Court of Alabama.

Oct. 18, 1951.

Rehearing Denied March 6, 1952.

Wilkinson & Skinner, Birmingham, pro se, for appellants.

Jones, Dominick & McEachin, Tuscaloosa, for appellee.

STAKELY, Justice.

The question for decision is whether the court abused its discretion in setting aside a judgment by default. The suit was begun by an attachment sued out by Wilkinson and Skinner, partners doing business as Wilkinson & Skinner, against Harry Cohen, a nonresident residing at Memphis, Tenn. The attachment was levied by service of a sheriff's garnishment on Milton Andrews, President of the Bank for Savings and Trusts, at Birmingham, Alabama.

The garnishee filed his answer and notice to the nonresident defendant of the levy and pendency of the attachment was published for three successive weeks in a newspaper commencing October 21, 1950. On December 4, 1950 defendant by his attorneys, Jones, Dominick and McEachin of Tuscaloosa, Alabama, filed a motion to quash service and to quash the writ of attachment and its levy, a motion for rule to show cause why the attachment and garnishment should not be dissolved and certain pleas in abatement.

The plaintiffs filed demurrers to the pleas in abatement on December 20, 1950 and also filed a motion to strike pleas 1 Through 18 on December 21, 1950. On December 11, 1950, Judge Engene Hawkins overruled motion of defendant to quash service and to quash the writ of attachment and its levy and overruled the motion of defendant for a rule to show cause why the attachment and garnishment should not be dissolved. On December 21, 1950 Judge Russell McElroy overruled the motion of plaintiffs to strike defendant's pleas in abatement and the demurrers of plaintiffs to defendant's pleas in abatement were taken under advisement. Additional pleas in abatement were filed by the defendant on January 15, 1951.

On January 19, 1951, plaintiffs filed an amendment of their affidavit. The summons and complaint was amended by adding a count for work and labor designated Count 2 and a count designated Count 3 alleging breach of contract. On January 22, 1951 plaintiffs filed additional demurrers to defendant's additional pleas in abatement. On January 25, 1951 Judge McElroy set aside the previous submission made on December 21, 1950 and the defendant refiled his motion to quash service and to quash the writ of attachment and refiled his motion for a rule nisi to show cause why the attachment and garnishment should not be dissolved. These motions were overruled.

The defendant refiled to the complaint as amended his pleas in abatement and plaintiffs refiled their demurrers to the pleas. In its order of January 25, 1951 the court also sustained the demurrers to the pleas in abatement and defendant was allowed until and including February 10, 1951 to plead further.

On February 12, 1951 defendant filed demurrers to the complaint and to each count thereof separately and severally and demanded a jury trial. The demurrers were mailed by defendant's attorneys from Tuscaloosa, Alabama, to the Clerk of the Circuit Court at Birmingham, Alabama, on Friday, February 9, 1951 by United States mail postage prepaid. These demurrers were marked filed on February 12, 1951. On February 13, 1951 plaintiffs filed a motion to strike defendant's jury demand and on February 16, 1951 this motion was dismissed without prejudice.

On February 28, 1951 the attorney for the plaintiffs appeared before Judge J. Edgar Bowron, who was engaged in the trial of cases at the time, and asked for a default judgment against defendant. Judge Bowron asked the attorney if he had checked the docket in the clerk's office to see if the defendant was in default. The attorney replied that he had checked the docket and the defendant was in default, the attorney further stating, 'In Judge McElroy's order the defendant was given until February 10, 1951 to plead. He has not filed any pleas. He has filed a demurrer to the complaint, but not to the complaint as amended. I think we have him on a point of law * * *.' Judge Bowron replied that he was going to accept what the attorney said about the demurrers without checking the record. Thereupon on February 28, 1951 Judge Bowron entered a judgment by default for the plaintiffs. On March 2, 1951 Judge Bowron filed an order discharging Milton Andrews, the garnishee, and condemned a fund of $25,000 in the hands of Milton Andrews to the satisfaction of the default judgment. The fund of $25,000 was paid into court by Milton Andrews and the clerk of the court in turn paid the proceeds to the plaintiffs, less the costs. On March 2, 1951 Judge Bowron telephoned one of the defendant's attorneys at Tuscaloosa, Alabama, and stated that the case had been presented to him for a judgment by default on February 28, 1951 and for a judgment condemning to the satisfaction of the judgment by default the fund or sum of $25,000 in the hands of Mr. Milton Andrews and ordering the said garnishee, the said Mr. Milton Andrews, at his election, to pay said sum into court and accept the acquittance therefor. Judge Bowron stated that he was not familiar with the case at the time it was presented to him for entering the default judgment and judgment condemning the garnishment fund and stating that he was not shown the demurrer heretofore filed by defendant's attorneys and further stated that he did not know that any attorneys of another city were representing defendant at the time. The attorney advised Judge Bowron that demurrers had been filed in the case and a jury trial demanded and Judge Bowron stated that the clerk of the court was standing at his elbow and showing him the demurrers of the defendant which were filed in the case.

On March 6, 1951 the defendant filed a motion to set aside and vacate the default judgment and the order discharging the garnishee and condemning the funds in his hands. On March 9, 1951 plaintiffs filed an answer to defendant's motion to set aside the default judgment and the order discharging the garnishee. On March 28, 1951, within 30 days after the default judgment was entered and the order made discharging the garnishee and after oral arguments by attorneys, Judge Bowron set aside and vacated the default judgment and the order discharging the garnishee and condemning the fund in the hands of the garnishee and ordered plaintiffs to repay to the clerk of the court the proceeds of the fund received by them and the clerk in turn to repay the fund to Milton Andrews, the garnishee. On April 9, 1951 the court sustained plaintiff's motion for an order to suspend the part of the order requiring plaintiffs to pay over to the clerk of the circuit court the money received by them pursuant to the default judgment pending an application to the Supreme Court of Alabama to review the order setting aside the default judgment and the judgment discharging the garnishee. On April 16, 1951 this motion of the plaintiffs was granted by the court to be effective until May 11, 1951.

Security for costs of appeal...