Ex parte Atkinson

Alabama Court of Appeals

Ex parte Atkinson

120 So. 2d 923, 40 Ala. App. 664, 1960 Ala. App. LEXIS 283

CourtAlabama Court of Appeals

DecidedMay 24, 1960

Docket4 Div. 428

StatusPublished

Cited by2 cases

This text of 120 So. 2d 923 (Ex parte Atkinson) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex parte Atkinson, 120 So. 2d 923, 40 Ala. App. 664, 1960 Ala. App. LEXIS 283 (Ala. Ct. App. 1960).

Pincite

Opinion

CATES, Judge.

B. D. Atkinson has filed here an original petition for a writ of mandamus to the Honorable F. M. Smith, as Judge of the Covington Circuit Court. The purpose is. for us to command the respondent to hold for naught an order by which he set aside a default and a judgment in a non jury action on a note.

The default judgment was taken by AF kinson on November 6, 1959; the petition to set aside was filed some one hundred days later. After the passage of thirty days beyond judgment, the circuit court’s, jurisdiction can rest only on the four months statute, Code 1940, T. 7, § 279. Cf. Code 1940, T. 13, § 119; T. 7, § 276; Circuit Court Rule 11, Code 1940, Tit. 7 Appendix.

The pertinent allegation of the petition was — '“to which suit your petitioner has a meritorious defense.” Atkinson demurred. giving, among other grounds:

[665]*665“4. The petitioner does not allege with sufficient certainty of what his meritorious defense to this suit consists.

“5. The petitioner does not allege with the certainty required by law of what his meritorious defense to this action consists.”

The trial judge overruled the demurrer and restored the cause to the appearance docket.

We consider the demurrer should have been sustained. In Chastain & Lawrence v. Armstrong, 85 Ala. 215, 3 So. 788, 789, the court, per Somerville, J., said:

“The petition was fatally defective, * * * It failed to show that the petitioners, as defendants in the original suit, had a good and meritorious defense to the action. The averment of this general conclusion was totally insufficient. The facts constituting the supposed defense must be stated, so that the court may judge of their sufficiency. Dunklin v. Wilson, 64 Ala. 162. These the petition did not state, and the assignment of the demurrer based on that defect was properly sustained.”

Accordingly, the writ will issue.

Writ granted.

Free access — add to your briefcase to read the full text and ask questions with AI