Ex Parte Aaron
155 So. 2d 334
Ala.
1963
Check Treatment

*1 stat- plaintiff under the is the he ute. AARON, parte Drewey Jr. Ex Div. 40. question of now to the come

We Although no settlement attorneys’ fees. Alabama. been made, has appears that one it has June liability limits $10,000, tentatively set at policy protecting a ques to be seems suit. There counsel tion but that both Mr. Varner petitioner securing tenta

for aided

tive settlement. to back gone

Since has Doris Roberson him, she living

her husband with .and is attorney, Mr. sought discharge to her

Varner, con- with had a written whom she

tract. Mr. Varner then filed a his complaint a

leave file to establish attorney’s

lien for fee. appears petitioner “Answer in his file of Mr. Varner for leave n complaint in intervention,” on March filed equitable stated a formula for an answer, paragraph

solution. states that he and his wife

agreed for each to take one-half of the

proceeds judgment; would that she pay per Mr. Varner of her half cent 331/3 pay

(cid:127)and attorneys out n ofhis proceeds. half arrangement

We think this be ef- should supervised by

fected if trial court parties the tenta- able to conclude agreement

tive without -settlement delay part parties

undue attorneys. Seay, Jr., Solomon S. Montgomery, petitioner. denying petitioner

Unless the order of plaintiff intervene as suit filed Flowers, Atty. Gen., Richmond M. Geo. wife, Doris, is vacated and leave Mentz, Gen., Atty. Asst. D. Wm. F. Thet- upon receipt to intervene ford, Smith, Maury D. Circuit Solicitor opinion, peremptory writ of man- Solicitor, Deputy Montgomery, damus will be awarded. State. conditionally Writ mandamus award- GOODWYN,

ed. Justice. Aaron, Drewey Jr., Negro,

Petition of LAWSON, for leave to file in the circuit court of Mont- GOODWYN - COLEMAN, JJ., gomery for a writ concur. oí *2 ing part way,, in diligence

error coram and vacate a on their nobis to review judgment him to sentencing petitioner nor that than com- of that court other pletely rape death for of a white woman. satisfied with their services attorneys. Indeed, they were successful 17, July 1959, On Aaron was first con- securing petitioner’s a reversal of County grand offense viction, trial in the second tire record jury. by petit jury Iiis in a trial resulted peti- representation of discloses their able guilty, verdict of fixed being with death tioner. punishment. as his Judgment thereon was 29, July rendered on motion way, prior Aaron’s At to the and in no for a September peti- new trial filing present was overruled on petition, did the 21, appeal here, judgment composi- 1959. On counsel'question was tioner or his 14, July 1960, reversed on and the cause re- grand tion of or either of the juries. fact, manded to the circuit court for another according affidavit State, 70, trial. Aaron 122 of incorporated the trial motion So.2d 360. at- petition, dismiss the defendant’s torneys prior to judge, were asked On Aaron’s retrial the verdict was presence arraignment, defendant’s “in the trial, same.as on judgment the first defendant, they of the intended whether 29, thereon was rendered on November pleas to file attacking motions or either 1960. His motion for a new was over Jury Grand Jury venire be- the Petit ruled January here, on On makeup cause the racial such Grand September was affirmed on Jury venire,” Jury or Petit and that the application and Aaron’s rehearing attorneys, presence, in defendant’s advised April 5, denied on 1962. Aaron v. they the judge “that did not intend to attack 139 So.2d 309. His Jury Jury either the Grand or the Petit petition fror certiorari was denied Venire on con- grounds.” racial In this Supreme Court of the United States on nection, judge’s the trial affidavit also 8, 1962, Aaron, petitioner, October Ala statements, following contains the “I viz: bama, L.Ed.2d inquiry made this of the 82 (1962). attorneys because I am a On December peti- Super- Board of tion now before us was filed An here. myself visors and would have had to recuse amended was filed January on system should an attack made on be 1963, pursuant to an extension of time because of in- racial discrimination. The request. at Aaron’s propriety quiry I which directed to the defendant’s of coram allegations nobis is based on that attorneys and the defendant was made both the trial open rulings at the conclusion of -Court illegally constituted, were thus to motions, appearing in the records of the process “the due of law and the trial, prior arraign- first Aaron to actual equal protection of guaranteed the laws by ment.” the Constitution and laws the State of authority parte Seals, On of Ex Alabama and of the United States.” cert. den. 366 Throughout both trials 81 S.Ct. L.Ed.2d resented Negro attorneys, two neither is due to be denied. appointed whom was court and one of Petition denied. whom was a practicing in Mont- gomery County, where the trials were held. The records of the two trials do not dis- J.,C. and MERRILL close the source employment, of their but COLEMAN, JJ., concur.

there is no suggestion indication or representation petitioner-was JJ., lack- dissent) LAWSON and SIMPSON, court, the opinion As stated MERRILL, (concurring). Justice law- by Negro reasons additional These remarks contain trial,' yer first choosing his own in his opin- foregoing my Tor concurrence in the con- *3 appeal of judgment on the here when ion. trial, reversed, at the second viction was judgment was on the when second of the alleges Petitioner that members affirmed, on his Negro systematically excluded race are by Court, and the United States County Montgomery from the in This lawyer proceeding. in the same then, point to excuse the failure raise of practice been in the active earlier, makes this statement: it is County, and Montgomery the law in any beyond speculation that of the realm “Facts on which are residing lawyer, practicing law active petitioner at based were not known to that fail to know Montgomery, in could trial, they with time of nor could question Negroes from of of exclusion diligence reasonable ascer- have been County has been juries Montgomery in however, tained. Said if known facts not been years, in and has raised recent season, in prevented would have rendi- successfully. raised judgment challenged.” tion of the County Montgomery Board of The by signed The is and sworn to jury com- Supervisors from is different defendant. in Ala- counties of all the other missions counties, sixty-six In the bama. other This is not Law- sufficient this case. governor. appointed are members yers by defendants, appointed are hired or are County, certain officials they the court when unable to em- are members, circuit and the law makes the them, ploy they might in order that judges of protect resent the defendant and the client’s Therefore, ques- Board. whenever rights, especially legal matters as to those Negroes systematic exclusion tion of rights of which the client has no knowl- raised, the circuit is from the box edge experience. or Most and either recuse themselves judges must could make an affidavit did not that he county is called judge from another legal many know the things effect of that case, parties agree on try or the trial, went on at his but that cannot mean Montgomery bar act of the knowledge imputed that is not to him. the case. special attorney duly An agent is the authorized especially among publicity, The attendant of his client and his acts his are those of lawyers, it inconceivable renders the local is, therefore, client. client The bound attorney any qualified active local attorney the acts in the course of ques- raising of the know legal proceedings in the absence of fraud judge would have to be a new tion because collusion, Martin, McWilliams v. during the trial. and serve selected knowledge 188 So. cases mentioned the record imputed client, One attorney is notwith worthy mention. The de- us is before standing knowledge the client had no actual fendant, rape, or notice of the facts and circumstances. They lawyers. ques- raised the Cook, by white Silvey & Co. 68 So. Negroes exclusion tion exceptions 37. The courts have made some causing rules, juries at the from the subsequently is to these but as shown judge and circuit opinion, the recusal of the elected leading in this case on the local appointment a member of involved, question here United States ex concerned upon parties all Cir., bar whom Goldsby Harpole, rel. 263 F.2d in circuit tried agreed. quite is case. different from the instant

court, appeal, justify and was these facts alone was treated here on the denial of the- petition. argued in the United States re- of conviction where The facts here far different than- versed. See Reeves those United States ex rel. Goldsby v. reversed Harpole, Cir., 263 F.2d where it was. 99 L.Ed. 700. ordinary matters, procedural said that the defendant in a criminal is case bound court, The case was in circuit retried by the counsel, acts or nonaction raised, same this time might that rule extend to a waiver the- attorneys, represent Negro were then who objection that Negroes were *4 defendant; ing again the it was treated excluded petit juries. from or Al- on to this court the where though court, Harpole the case, in the held affirmed; of conviction certiorari again was the facts there waiver, did a constitute by and then the dismissed we think the overwhelming evidence in the- Supreme Federal Court. Reeves See record before shows petitioner’s us that the 561, certiorari lawyer knew or should have known that granted, 1 L.Ed. 352 U.S. 77 S.Ct. question the recently raised, had been dismissed, 2d litigated fully courts, been in the that it had L.Ed.2d 352. systematic been decided that there was no Negroes exclusion of jury from the rolls The record shows also that another un- County, attack, that client question, raising successful the same by could have case tried a was made in 1960 in a case in which the agreed bar the on him defendant, instead of the Jr., King, Martin Luther elected circuit in the event he did acquitted by jury. the The record also question the proper raise the at time. shows that the who resents the in the instant case case, Harpole Also it was held that question involving raised same in a case question raised, had the been it should have Negro a client. been sustained. here, But the overwhelm- is, ing evidence that had the cannot said be that the or his raised, it would not have been sustained. attorney did not have knowledge of the question or that it had been raised and Harpole, Again suggested it was that litigated previous in cases instant the record should have shown the reasons case. lawyer’s the white failure raise the federal at the in view The record also contains the evidence of employment of the fact that his ceased after four the Board procedure trial. Such Supervisors positively which contradicts grossly be unfair in the instant case because- charge of Negroes exclusion of has been his. juries. from present attorney record arraign- since his ment, during his two and his two trials There is lawyers evidence of and news- appeals Supreme to this court and to the paper reporter that, upon based United Court of the States. observation, number Ne- groes appearing ber of m court is Federal District Court in Negroes equal, proportionately, an appearing jury panels on Montgomery. in the circuit to the num- panels that the “ ** Harpole, the court said: be tried before Upon [*] appellant’s constitutional petit record, we hold right from system- prepon- Negroes negates which have not been record before us derantly atically petition excluded has not been effective- allegations in the that ly Negroes by counsel authorized to from waived excluded County, and make such waiver.” rolls in petition us, right 513. The to file the we find no Upon record before effect fully grounded on averments which is not allegation of exclusion systematically ex Negroes had been completely that evidence answered grand jury cluded from the which preponderance adequately such as to show which tried him. Seals and the denied. The that should be ground We denied the Supreme of the United States Court either court, irregularities supervisory involving no matter said that “in its presented law, grand jury petit jury was capacity or over the enforcement of the length rape. upon quoted We at rea- was called to determine also the Seals’ Williams, supra. Cer allegations in the from sonableness made Johnson improbability tiorari denied Court probability and the prejudice to Alabama, without Taylor of the United of their truth.” States corpus application for a writ habeas an U.S. 68 S.Ct. appropriate United States District L.Ed. Alabama, 366 Court. — Seals v. 1909,6 L.Ed.2d 1246. 81 S.Ct. GOODWYN, J.,C. *5 HARWOOD, COLEMAN and JJ., concur. suggestion made In accordance with the States, Supreme United the Court of the corpus, application an for filed habeas Seals LAWSON, (dissenting). Justice in United States District Court for holding The of the court is in direct Alabama, Middle District of where a conflict on this federal with the application. was entered holdings of United Circuit Court States appealed to the United States Court Seals Appeals for the Fifth in of Circuit United Circuit, which Appeals, Fifth reversed of Wiman, 304 F.2d v. States ins the District of Court Supreme Court, the United denied States doing said follows: so 83 9 L.Ed.2d Goldsby and in United States ex rel. v. of “Left decision is for Cir., effect, Harpole, and, 5 263 F.2d in objection jury grand to whether parte recent overrules our case of Ex petit to both on the or to the ante, Howard, p. 151 So.2d 790. of Ne exclusion ground of open for consideration remains groes It is true that under our holdings former corpus proceeding. The habeas in this timely quash to the failure file motions Alabama petit jury an indictment and the constituted waived his con opinion that Seals had questions post-conviction a waiver raise those in a rights to insist stitutional proce eding. v. Wil —Johnson not be ex his race liams, 13 So.2d cases grand racé from both cluded because cited; Taylor, parte Ex 32 petit when he jury service State, Seals v. Ala. 126 271 objection attorney not make the did So.2d 474. nor on motion for new trial. Seals, parte Ex Howard, parte supra, In Ex we in effect agree.” We do recognized holdings that our in the cases supplied) (Emphasis States — United cited above last had been vitiated Cir., Wiman, F.2d Harpole Case Case. Wiman State, supra, opinion con in we were court the instant has seen Seals in perpetuate fit holdings fronted with a for leave file our Johnson Williams, supra; Taylor, supra; parte the trial court a for of error v. writ Ex Seals, State, Negro, supra, irrespective con and coram nobis whose Seals v. rape by this holdings the fact that two. viction affirmed under the cases cited above from the Fifth court. — Seals Circuit n Aaron, petitioner,

it" follows a- that the corpus proceeding

habeas a federal dis- attack the com-

trict court will be able to

position which indicted

him and the which tried him. not, in an to me that we should seems decisions, perpetuate

effort to own force our

these composition cases which involve the courts, juries into our the federal

that is the inevitable result of court’s holding questions in this case. These should Walters, Troy, appellant. C. John right be decided in the state courts with the Stokes, L. Chas. Woods and Chas. O. review, course, United States Ozark, appellee. I grant Court. leave to file the for writ of error coram GOODWYN, Justice. nobis the Circuit Court of County. 19, 1962, appellant On October filed in circuit court peti- Dale require appellee, tion for mandamus to SIMPSON, J., foregoing cbncurs Judge county, of Probate of said to make views. changes in the certain names of candidates county commissioner from district No. *6 general 3 on ballots to be used in the elec- tion to be held on November 1962. The trial court issued a rule nisi on October 19, and set “a hearing on the rule nisi” 25. An hearing October oral was had on the date set and on October a26 155 So.2d 338 was rendered 29, petitioner for mandamus. NORRELL, On October W. E. Jr. appeal from that judgment. took case submitted here on March 1963. ADAMS, K.) Judge (S. Kirke of Probate. It seems clear that the case is moot. 4 Div. 152. Accordingly, we have alternative but Supreme Court of Alabama. appeal. to dismiss the It has been held event, appeal, if an pending makes June determination of the unnecessary, clearly impossible or renders it ap- for the pellate grant relief, court to effectual appeal will be City dismissed. State ex rel. Jansen, 104, 106, Prichard 736; Lyle, McDonald v. 885; Lloyd 121 So.2d State ex rel. Morris, 432, 433, Shelton, 48, 49, Shelton v. Appeal dismissed. J., and C. LAWSON

COLEMAN, JJ., concur.