60 So. 602 | Ala. Ct. App. | 1912
On January 7, 1911, the appellee, Annie Harvey, obtained a judgment by default in the circuit court of Jefferson county against appellant. On May 11, 1911 — more than four months after the rendition of the said judgment — appellant, defendant below, filed with the judge of said court an application for rehearing under the provisions of section 5372 of the Code, whereupon supersedeas was ordered and issued as provided in section 5374 of the Code. On June 29, 1912,
The record here filed includes, not alone the proceedings of the lower court on such application for rehearing, together with a bill of exceptions then taken, hut also all the proceedings in the original cause. On this record, in connection with the submission of the appeal from the judgment denying the application for rehearing, is submitted a motion for a writ of mandamus to the lower court to require it to vacate the said order and judgment denying the application for rehearing and dismissing the application, and also a motion for a writ of certiorari or other appropriate writ necessary to a review of the proceedings and judgment in the original cause. — Ex parte Tower Mfg. Co., 103 Ala. 415, 15 South. 836.
The motion for a writ of mandamus is denied; for according to the settled practice of the Supreme Court of this state an appeal is the proper remedy for reviewing the final judgment of the lower court in refusing to grant a statutory rehearing. — O’Neal v. Kelly, 72 Ala. 559; Brazel v. New South Coal Co., 131 Ala. 416, 30 South. 832; Ex parte Campbell, 130 Ala. 171, 30 South. 385.
Considering, then, the appeal: It is sufficient to say that the record affirmatively shows that the application for rehearing was filed after the lapse of more than four months from the rendition of the judgment, and this, without considering other grounds, justifies and necessitates the affirmance of the judgment of the lower court denying and dismissing the application for rehearing. — Code, § 5372.
Appellant insists that the judgment by default is void for the following reasons, to wit: (1) Because the record does not show that proof was made that Mitchell, the person upon whom the original summons was executed, was an officer of defendant. (2) Because the record shows that demurrers to the complaint had been filed before and were on file at the time the judgment by default was rendered, and that under the practice act governing the court its action in rendering judgment by default was void. (3) Because the defendant, the Endowment Department of the District Grand Lodge of Alabama, No. 23, of the Grand United Order of Odd Fellows, is neither an incorporated nor an unincorporated association or entity, and is not suable as such —the real party suable, it is contended, being the District Grand Lodge itself of the fraternal order named, ■and not the Endowment Department thereof.
As to the first proposition, a quotation from the judgment entry itself is a sufficient answer. The judgment recites: “On this the 7th day of January, 1911, came the plaintiff by attorney, and it being proved to the satisfaction of the court that service of summons and complaint in this cause was had on P. T. Mitchell as District Grcmd Master of the defendant, and that he
The recital in the judgment- entry that service was made on P. T. Mitchell as District Grand Master and that he was the proper person upon whom service should have been made,” instead of reciting that “he was the proper officer upon whom service should be made,” is ■sufficient, since the title by which he was described was the title imported by the abbreviations accompanying the signature of the officer who signed the policy sued on. Besides, even granting that the recitals in the judgment entry are insufficient to support a judgment by default, the record affords other ample evidence to ■support the jurisdiction of the court, since it shows an appearance by appellant in filing demurrers to the •complaint. With these demurrers on file, technically the judgment should have been “nil dicit,” instead of “by default.” But this technical error on the part of the court would not and did not destroy the jurisdiction of the appellant, which it had acquired by its appearance.
As to the second proposition : The fact that the court rendered judgment by default against defendant when ■demurrers were on file, while error, yet does not render
The third proposition — that the suit should have been against the District Grand Lodge, No. 23, of the Grand United Order of Odd FelloAvs, instead of against the EndoAvment Department of such lodge- — is equally untenable. This is apparent from an inspection of the policy of life insurance sued upon, which is copied in full and made a part of the second count of the complaint. (The reporter will set out this count ipsissimis verbis in his report of the case.) The contract of insurance upon its face, as will be observed from a mere casual reading of it, fixes the obligation to pay upon the EndoAvment Department. They, or it, are the promisors upon the face of the instrument, and they, or it, by such promise make themselves, or itself, an association of persons to be sued. The contract is presumed to have been executed by their authority, in the absence of a SAvorn plea of non est factum. It is true that in the case of District Grand Lodge No. 23 of United Order of Odd Fellows v. Hill, 3 Ala. App. 488, 57 South. 147, this court held, under the facts proved in that case, in connection Avith the policy, that on such a policy as that here considered the District Grand Lodge was also liable to the insured; but Ave did not hold, or mean to hold, that the Endoxvinent Department would not have been liable, if the beneficiax’y had chosen to sxxe them or it. On the face of the policy the Endoxvment. Department Avas the only person or association liable; but in
An agent who makes a contract without disclosing that he is acting for another is personally liable, and that is the case at bar. — 4 Mayfield’s Dig. p. 544 et seq. But the other party to the contract, upon discovering the principal, may under some circumstances hold the principal liable, and that was the case in District Grand Lodge, etc. v. Hill, supra.
Motion for certiorari is also denied, and the judgment of the lower court, denying ■ and dismissing the application for rehearing, is affirmed.
Affirmed.