Moore v. Moore

Court of Civil Appeals of Alabama

Moore v. Moore

601 So. 2d 1059, 1992 Ala. Civ. App. LEXIS 362, 1992 WL 171553

CourtCourt of Civil Appeals of Alabama

DecidedJuly 24, 1992

Docket2910209

StatusPublished

Cited by1 cases

This text of 601 So. 2d 1059 (Moore v. Moore) 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

Moore v. Moore, 601 So. 2d 1059, 1992 Ala. Civ. App. LEXIS 362, 1992 WL 171553 (Ala. Ct. App. 1992).

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Opinion

ROBERTSON, Presiding Judge.

This petition for a writ of mandamus seeks to have the trial court reinstate a default judgment of divorce.

Ginger Moore (wife) filed a complaint for divorce on October 23, 1990, and the trial court entered a default judgment against Rayburn Moore (husband) on January 3, 1991. On January 23, 1991, the husband filed a motion to set aside the default judgment which he characterized as a Rule 60(b) motion. This motion was ultimately granted by the trial court on August 20, 1991. On January 28, 1992, the wife filed this petition for a writ of mandamus for this court to direct the trial court to reinstate the default judgment.

In order for this court to grant a writ of mandamus in this case, the wife must show that the trial court was bound by law to reinstate the default judgment entered on January 3, 1991. Ex parte Phillips, 578 So.2d 1371 (Ala.Civ.App.1991). This, she has failed to do. This court must observe the well-established principle that granting litigants the right to a trial on the merits is a paramount consideration in cases dealing with default judgments. Hannah v. Blackwell, 567 So.2d 1276 (Ala.1990). We further note that a writ of mandamus is not a substitute for an appeal and will not lie where there was a remedy by appeal. Ex parte Brooks, 572 So.2d 409 (Ala.1990),

WRIT DENIED.

THIGPEN and RUSSELL, JJ., concur.

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ROBERTSON, Presiding Judge.

This petition for a writ of mandamus seeks to have the trial court reinstate a default judgment of divorce.

Ginger Moore (wife) filed a complaint for divorce on October 23, 1990, and the trial court entered a default judgment against Rayburn Moore (husband) on January 3, 1991. On January 23, 1991, the husband filed a motion to set aside the default judgment which he characterized as a Rule 60(b) motion. This motion was ultimately granted by the trial court on August 20, 1991. On January 28, 1992, the wife filed this petition for a writ of mandamus for this court to direct the trial court to reinstate the default judgment.

In order for this court to grant a writ of mandamus in this case, the wife must show that the trial court was bound by law to reinstate the default judgment entered on January 3, 1991. Ex parte Phillips, 578 So.2d 1371 (Ala.Civ.App.1991). This, she has failed to do. This court must observe the well-established principle that granting litigants the right to a trial on the merits is a paramount consideration in cases dealing with default judgments. Hannah v. Blackwell, 567 So.2d 1276 (Ala.1990). We further note that a writ of mandamus is not a substitute for an appeal and will not lie where there was a remedy by appeal. Ex parte Brooks, 572 So.2d 409 (Ala.1990),

WRIT DENIED.

THIGPEN and RUSSELL, JJ., concur.

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601 So. 2d 1059, 1992 Ala. Civ. App. LEXIS 362, 1992 WL 171553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-moore-alacivapp-1992.

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