Schwarz v. Oppenheimer, Strauss & Co.

90 Ala. 462

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

McCLELLAN, J.

The' fact that an affirmative plea, not verified by affidavit, has been filed, will not prevent the ren- - diti.on.of a.judgment by default, unless the defendant- appears to sustain it.—McCollum v. Caple, 1 Ala. 515; Dougherty v. Colquitt, 2 Ala. 337; McCoy v. Harrell, 40 Ala. 232; Lehman, Durr & Co. v. Hudmon, 85 Ala. 135; Ins. Co. v. Caldwell, 85 Ala. 607; Elyton Land Co. v. Morgan, 88 Ala. 434.

Section 11 of the act regulating the practice and proceedings in civil cases in the Circuit Court of Jefferson county &c. provides : “That final judgments rendered in said court shall, after expiration of thirty 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 thirty days.” — Acts 1888-9, p. 801. The motion of the defendant to vacate and set aside the judgment, being made after the lapse of thirty days from its rendition, should have been overruled; the court was without any authority or jurisdiction to entertain it, and the order granting it was absolutely void. —Slatter v. Glover, 14 Ala. 650; Harris v. Billingslea, 18 Ala. 438; Griffin v. Griffin, 40 Ala. 276. The order vacating the judgment being without any force or effect, it was competent for the court to expunge it from the records.—Glass v. Glass, 76 Ala. 368, and authorities cited.

Defendant’s only remedy, after the lapse of thirty days from the rendition of the judgment, was by petition for rehearing under the statute. — Code, §§ 2872 et seq.

There is no error in the record, and the judgment is affirmed.