Ex parte Overton

Supreme Court of Alabama

Ex parte Overton

57 So. 434, 174 Ala. 256, 1912 Ala. LEXIS 14

CourtSupreme Court of Alabama

DecidedJanuary 18, 1912

StatusPublished

Cited by8 cases

This text of 57 So. 434 (Ex parte Overton) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex parte Overton, 57 So. 434, 174 Ala. 256, 1912 Ala. LEXIS 14 (Ala. 1912).

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Opinion

SAYRE, J.

This is an original application to this court for a writ of mandamus. It appears that the petitioner brought his suit in the circuit court of Jefferson county against Octavia A. Wood. On October 7, 1911, more than 30 days after due service of the summons and complaint, defendant being in default, plaintiff had judgment by default with leave to execute a writ of inquiry for the assessment of damages. On November 10, 1931, the inquiry was executed and damages assessed by a jury. Subsequently the defendant moved the court to set aside the judgment and for leave to plead to the merits, averring that she had been prevented 'from making defense by surprise, accident, and mistake, and that she had a just, full, and complete defense. On November 18, 1931, the court set aside the verdict and judg[258]*258ment. Petitioner prays that the judge of the circuit court be required to vacate, annul, and set aside the judgment by which his judgment was vacated, annulled, and set aside.

The act regulating the practice in the circuit court of Jefferson (Local Acts 1888-89, p. 797) provides in section 11 that “final judgments rendered in said court shall, after the expiration of 30 days from their rendition, be taken and deemed as completely beyond the control of the court as if the term of said court at which said judgments are rendered had ended at the end of said 30 days.” The motion was addressed to the sound discretion of the court, and it is not alleged that the court’s ruling was infected with error, except that the motion and the judgment were made and rendered more than 30 days after the judgment by default. But the limitation of 30 days is placed upon the power of the court to interfere with judgments which are final. Interlocutory judgments are as much under the control of the court as they ever were. The judgment by default was an interlocutory judgment. It is generally held that a final judgment cannot be entered where the damages are, as in this case, unliquidated, or the amount of plaintiff’s claim uncertáin or indeterminate. There must first be an interlocutory judgment by default, and the final judgment is entered after the damages have been assessed by a writ of inquiry or otherwise determined according to law. 23 Cyc. 765. It was so ruled by this court in Martin v. Price, Minor, 68. There was no error in the court’s action, and the writ of mandamus will be denied.

Mandamus denied.

All the Justices concur, except Dowdell. C. J., not sitting.

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SAYRE, J.

This is an original application to this court for a writ of mandamus. It appears that the petitioner brought his suit in the circuit court of Jefferson county against Octavia A. Wood. On October 7, 1911, more than 30 days after due service of the summons and complaint, defendant being in default, plaintiff had judgment by default with leave to execute a writ of inquiry for the assessment of damages. On November 10, 1931, the inquiry was executed and damages assessed by a jury. Subsequently the defendant moved the court to set aside the judgment and for leave to plead to the merits, averring that she had been prevented 'from making defense by surprise, accident, and mistake, and that she had a just, full, and complete defense. On November 18, 1931, the court set aside the verdict and judg[258]*258ment. Petitioner prays that the judge of the circuit court be required to vacate, annul, and set aside the judgment by which his judgment was vacated, annulled, and set aside.

The act regulating the practice in the circuit court of Jefferson (Local Acts 1888-89, p. 797) provides in section 11 that “final judgments rendered in said court shall, after the expiration of 30 days from their rendition, be taken and deemed as completely beyond the control of the court as if the term of said court at which said judgments are rendered had ended at the end of said 30 days.” The motion was addressed to the sound discretion of the court, and it is not alleged that the court’s ruling was infected with error, except that the motion and the judgment were made and rendered more than 30 days after the judgment by default. But the limitation of 30 days is placed upon the power of the court to interfere with judgments which are final. Interlocutory judgments are as much under the control of the court as they ever were. The judgment by default was an interlocutory judgment. It is generally held that a final judgment cannot be entered where the damages are, as in this case, unliquidated, or the amount of plaintiff’s claim uncertáin or indeterminate. There must first be an interlocutory judgment by default, and the final judgment is entered after the damages have been assessed by a writ of inquiry or otherwise determined according to law. 23 Cyc. 765. It was so ruled by this court in Martin v. Price, Minor, 68. There was no error in the court’s action, and the writ of mandamus will be denied.

Mandamus denied.

All the Justices concur, except Dowdell. C. J., not sitting.

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Bluebook (online)

57 So. 434, 174 Ala. 256, 1912 Ala. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-overton-ala-1912.

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