Ex parte Dew

62 So. 261 | Ala. Ct. App. | 1913

WALKER, P. J.

The petitioner prays that a writ of mandamus issue to Hon. Bernard Harwood, a judge of the 'Sixth judicial circuit, directing him to vacate and set aside a judgment establishing a lien upon property of the petitioner rendered on the 7th day of October, 1912, by the circuit court of Greene county in favor of the town of Eutaw, and to recuse himself as judge on any subsequent trial of the cause in which said judgment was rendered. The cause or proceeding in which the judgment was rendered was one for the enforcement of a charge or assessment for a street improvement made by the town of Eutaw against the property of the petitioner. It is not alleged or suggested in the petition that during the trial of that proceeding or prior to the rendition of the judgment therein it was intimated that the presiding judge had any disqualifying interest in it or that for any reason he was incompetent to preside in the trial. The petition, however, shows that during the term of the court at which the judgment was rendered the petitioner filed a motion for a new trial, one of the grounds of which was the following: “Because the evidence developed that the First National Bank of Eutaw had loaned money to the city of Eutaw for the purpose of carrying out a contract made for the street, sidewalk, and gutter improvements, and for which, or a part of which, in this suit it is sought to hold the property of the defendant liable; and defendant now shows to the court that your honor, by reason of the fact that he was a stockholder in said bank, was disqualified from sitting in the trial of this cause.” This motion for a new trial was overruled, the presiding judge on the hearing of it admitting that he was a stockholder in said bank. After the final adjournment of the term of the court at -which the proceedings mentioned were had, the petition now under consideration was filed in this court, averring the facts above stated, and also, among other things, that the loan to the Town of Eutaw which Avas mentioned in the motion for a neAv trial was secured by a transfer to the bank of the lien of the town on the property of the petitioner which was enforced by the judgment complained of. It is not averred that the presiding judge knew or was informed of this fact Avhen the judgment was rendered or when the motion for a new trial was overruled.

The respondent demurs to the petition upon the following, among other, grounds: That, it shows on its fact that petitioner had an adequate and complete remedy at law; that the writ of mandamus prayed for would be unavailing; that the judgment sought to be set aside is not void, but is voidable only; and that the term of the court at which said judgment was rendered had passed at the time the petition was filed, and the respondent is without power to vacate or set aside said judgment. We are of opinion that this demurrer is well taken.

The following propositions are so well settled in this state that a discussion of them by us on this occasion is deemed wholly superfluous:

(1) A judgment rendered by a disqualified judge is not void, but is voidable merely. It is valid and oper-tive until reversed or set aside for the error in it, when availed of on a direct attack, and is not subject to collateral assault because of such, error. — Jeffersonian Publishing Co. v. Hilliard, 105 Ala. 576, 17 South. 112; Trawick v. Trawick, 6 7 Ala. 271; Plotoman v. Henderson, 59 Ala. 559.

(2) If a judgment is not void, but is merely voidable or subject to reversal for error on appeal, the court has no power to alter, vary, or amend it after expiration of the term at which it was rendered, except for clerical error or omission, on evidence found in the record. — Chamblee v. Cole, 128 Ala. 649, 30 South. 630; Baker v. Barclift, 76 Ala. 414.

(3) Upon the trial judge himself devolves, in the first instance, the determination of the question of his own competency; his action, if erroneous, being subject to be controlled by mandamus seasonably applied for. — State ex rel. Smith v. Pitts, Judge, etc., 139 Ala. 152, 36 South. 20.

Mandamus will not lie where there is another adequate remedy, such as an appeal; and the writ will not be granted when, if issued, it would prove unavailing, or to command an inferior tribunal to do that which it could not legally do without such mandate. — Ex parte Campbell, 130 Ala. 171, 30 South. 385; Ex pande Shaudies, 66 Ala. 134.

Manifestly this proceeding is an effort to have this court direct the trial judge to vacate a judgment which, before the proceeding was instituted, had on the expiration of the term at which it was rendered, been put beyond his power to vary, alter, or amend, and to recuse himself as a judge in a cause which is no longer pending’; the ground of complaint against the judgment being one which might have been availed of on an appeal which the petitioner might have taken, and for his failure to take which no excuse is shown. The application of the above-stated propositions to such a state of facts leads to the conclusion already expressed.

Demurrer to petition sustained, and petition dismissed.