Cobb v. Cobb

Court of Civil Appeals of Alabama

Cobb v. Cobb

395 So. 2d 1026, 1981 Ala. Civ. App. LEXIS 1108

CourtCourt of Civil Appeals of Alabama

DecidedMarch 4, 1981

DocketCiv. 2606

StatusPublished

This text of 395 So. 2d 1026 (Cobb v. Cobb) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cobb v. Cobb, 395 So. 2d 1026, 1981 Ala. Civ. App. LEXIS 1108 (Ala. Ct. App. 1981).

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Opinion

EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The plaintiff submitted this matter for a divorce judgment upon her complaint, the defendant’s answer and waiver, and the deposition of the plaintiff. Apparently, when filed the answer and waiver was dated the 11th day of November, 1980, but when submitted to the court the date had been altered or changed to the 12th instead of the 11th. The trial court dismissed the case because of that alteration or change.

The entire file of the circuit court is before us, and it reflects that the only valid problem area consists of such date modification. While any unauthorized change in filed legal documents is serious, there is nothing in the record indicative that the plaintiff was personally responsible for it. Therefore, under the circumstances, a dismissal of her ease was harsh. Accordingly, we reverse and remand this civil action with the suggestion that, if the trial court in its discretion deems it advisable, it may set aside the submission and strike the altered answer and waiver ex mero mota, thereby requiring either the obtaining of service of the summons and complaint upon the defendant or the procuring of another answer and waiver from him.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the judges concur.

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EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The plaintiff submitted this matter for a divorce judgment upon her complaint, the defendant’s answer and waiver, and the deposition of the plaintiff. Apparently, when filed the answer and waiver was dated the 11th day of November, 1980, but when submitted to the court the date had been altered or changed to the 12th instead of the 11th. The trial court dismissed the case because of that alteration or change.

The entire file of the circuit court is before us, and it reflects that the only valid problem area consists of such date modification. While any unauthorized change in filed legal documents is serious, there is nothing in the record indicative that the plaintiff was personally responsible for it. Therefore, under the circumstances, a dismissal of her ease was harsh. Accordingly, we reverse and remand this civil action with the suggestion that, if the trial court in its discretion deems it advisable, it may set aside the submission and strike the altered answer and waiver ex mero mota, thereby requiring either the obtaining of service of the summons and complaint upon the defendant or the procuring of another answer and waiver from him.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the judges concur.

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Bluebook (online)

395 So. 2d 1026, 1981 Ala. Civ. App. LEXIS 1108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-v-cobb-alacivapp-1981.