Williams v. Tyler

• Decision Date: 11 January 1916
• Docket Number: 6 Div. 919
• Citation: 71 So. 51,14 Ala.App. 591
• Parties: WILLIAMS v. TYLER.
• Court: Alabama Court of Appeals

71 So. 51

14 Ala.App. 591

WILLIAMS v. TYLER.

6 Div. 919

Court of Appeals of Alabama

January 11, 1916

On Rehearing, February 1, 1916

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Petition by Myrtle S. Williams for new trial in the case of W.G. Tyler v. Myrtle S. Williams, in which judgment was rendered nil dicit, for plaintiff and against petitioner. From an order sustaining demurrer to petition, petitioner appeals. Reversed and remanded on rehearing.

Thomas J., dissenting.

The following is the amended petition:

Comes the petitioner, Myrtle S. Williams, who is the defendant in the above-styled cause, No. 32544, and respectfully represents unto the court that she was prevented from making her defense in the above-styled cause No. 32544 by surprise, accident, or mistake, without fault on her part and that a judgment was rendered against her in the above-styled cause No. 32544 in the said city court of Birmingham, for the sum of $920.50, within four months from this date, to wit, on the 7th day of January, 1915. Petitioner further represents unto this court and states that within 30 days after the service of the summons and complaint upon her in the above-styled cause No. 32544 she employed the law firm of Harsh & Fitts to represent her in the above-styled cause, and to represent her defense in this court in said cause; that within said 30 days the said attorneys representing defendant therein, who is this petitioner, filed in said cause on behalf of said defendant now petitioner, demurrers to said complaint, and upon the same paper in which said demurrer was filed demanded a jury in writing for the trial of said cause; that in the summons and complaint filed against her in said cause No. 32544 this petitioner, defendant therein, was designated as "Myrtle S. Williams," and she was so designated in said proceeding filed in said cause by her said attorneys; that at all times from the service of said summons and complaint to the present time this petitioner has lived in Jefferson county, Alabama, and her said attorneys during the whole of said time have had an office in Birmingham, Alabama, and the said attorneys had or knew petitioner's post office address and her whereabouts. And petitioner avers that neither she nor her said attorneys ever knew or had any notice whatsoever that the said cause was set for trial until the day that the said original petition was filed, to wit the 8th day of March, 1915; that she learned that said cause had been set for trial accidentally, and by learning that a judgment had been rendered against her while she was engaged in or about selling or trading a piece of her real estate and that her said attorneys did not know and had no notice of the said judgment, or that the said cause No. 32544 was set for trial, until their attention was called to the same by this petitioner on said 8th day of March, 1915. Petitioner further avers that Jefferson county is a very large and populous county, containing, as petitioner is informed and believes, upward of 250,000 population, and that the city of Birmingham, in said county, in which this court is held, is a large city, containing upwards of 175,000 population; that the said city court of Birmingham has four judges, each of whom hold court separately one from the other, and are in session from the first Monday in October to the last day in June, less some short legal vacations; that the dockets of said city court of Birmingham contain a vast number of cases as petitioner is informed and believes, and therefore states, more than 2,000 cases; that there is held contemporaneously with said city court of Birmingham other courts in the said city of Birmingham, viz., the circuit court of Jefferson county, which has two judges, each of whom holds court separately from the other; the chancery court, which has one chancellor, the criminal court of Jefferson county, which has two judges, each of which holds court separately from the other, and the United States District Court, which has one judge; that the said circuit court has a great number of cases on its docket, much in excess of 1,000; that the said criminal court has several thousand cases on its docket, to wit, 3,000 cases, and that the said chancery court has a large number of cases on its docket, and that the said United States court has a considerable number of cases on its docket; that petitioner's said attorneys are attorneys engaged in the general practice of law in the said city of Birmingham, and practice in each of said courts in common with most of the bar in Birmingham; that long before the filing of the above-styled cause against this petitioner it had been recognized by the bar of said city of Birmingham and by the officers of each of said courts that it was practically necessary that the clerks of each of said courts should issue a printed docket for distribution amongst attorneys having causes set in said courts in advance of the day on which said causes were set, for the purpose of thereby receiving notice of the day on which said causes were set for trial; that for a long time prior to the filing of said cause, and at the time thereof, and ever since, the custom has universally prevailed in Jefferson county, Alabama, for the clerks of each of said courts to issue such a printed docket containing the names of each of the cases set in said court, together with the names of the attorneys for the plaintiff and also the names of the attorneys for defendant printed therein in connection with such causes, and to issue said docket a long enough time ahead of the day on which said causes were set for trial that the attorneys might have notice therefrom in ample time of the

setting of the causes to notify their clients and to prepare same for trial on the day for which said causes were respectively set for trial, and during all of said time it has been the custom of the bar in said Birmingham to rely upon said printed dockets for notice of the setting of said causes, and it has been the custom of petitioner's said attorneys to so rely upon said printed docket; that if attorneys were required to go to the clerk's office and there examine the original trial dockets, or original appearance dockets, or to procure the clerk to do so, in order to ascertain when their causes were set for trial, it would result in great expense and loss of time to said attorneys and to the clerks of said courts, and would require extra help to be furnished by said clerk, in order to furnish the opportunity for said attorneys to so examine said dockets, and would require extra help by and on behalf of attorneys who had in said courts any considerable practice; that an examination would have to be made frequently of the dockets of said courts, and that attorneys in making said examination would have to have lists of the causes in which they represented either plaintiff or defendant in said courts; that for several years last past the clerks of each of said courts have always furnished said printed docket to the attorneys, and it has not been the custom during said time for attorneys to examine the dockets in the clerk's office to ascertain when causes were set for trial, but, on the contrary, it has been the custom during the whole of said time to rely on said printed docket to so ascertain.

Plaintiff avers that the system of requiring attorneys to examine the original dockets in the office of the clerks would be wasteful of time and money, very vexatious and annoying, and wasteful to the clerks, and would be wholly impracticable; that Birmingham is a metropolitan city and that a metropolitan practice does not practically admit of any such method; that the above-styled cause No. 32544 was docketed on one of the large dockets of the city court of Birmingham, to wit, the appearance docket, and on said original docket the defendant's name was given correctly and in full, and her said demurrers signed by her said attorneys were shown on said docket to have been filed, and the names of her said attorneys were there entered on said appearance docket, to wit, in the month of June, 1914, at or about the time petitioner's said demurrers were filed in said cause; that the clerk of said court, through himself or one of his deputies, undertook to transcribe from said original or appearance docket the causes thereon to be set for trial during the term of said court beginning on the first Monday in October, 1914, including the above-styled cause No. 32544, and that said transcribed docket was the docket to be used and which was used in setting said causes so transcribed, including the above-styled cause, for trial during said term; that in transcribing the above-styled cause the said clerk or his deputy by accident or mistake omitted the first name of defendant, and merely gave initials, and omitted the names of defendant's attorneys and all reference thereto; that the said cause was marked on said transcribed docket as set for trial January 5, 1915, and a printed docket as above described was made up and printed at the instance of said clerk for distribution amongst attorneys having causes set on said docket, that they might learn in due time the dates on which their said causes were set for trial; that by accident or mistake there was not only omitted from said transcribed docket the first name of defendant, only her initials being given, and also the names of her attorneys and all reference thereto, but there was also omitted from both of said dockets, to wit, said transcribed docket and said printed docket, the names of defendant's attorneys and all reference thereto; that in the due course of business, and in the diligent prosecution of their practice, said attorneys procured one of said printed dockets in due season, in

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