140 Ala. 196 | Ala. | 1903
Petition for writ of mandamus to compel the vacating of an order setting aside a judgment by default entered by the respondent as judge of the city court of Bessemer. It appears by the record that the petitioner brought his action, by summon and complaint, against the Birmingham Mining & Contracting Company, a copy of which was served on an agent of defendant on the 20th day of August, 1903.
Nine days thereafter the defendant, by attorney, appeared and filed a demurrer to the complaint. On the 9th day of November following the judgment by default was rendered, which was set aside on the 14th day of the same month on the application of the defendant. The application to vacate the judgment by default was not accompanied by an affidavit by the defendant or his agent or attorney to the effect that in the belief of the affiant the defendant had a lawful defense to the action. And this want of the accompanying affidavit with the application is made the basis for the contention that the court was without jurisdiction to set aside the judgment and, therefore, entitles the petitioner to the writ of mandamus prayed for.
Section 8 of the act establishing this court (Acts, 1900-1, p. 1859) provides: “That in all cases commenced in said court by summons and complaint, the defendant shall be required to appear and demur or plead to the complaint within thirty days after the sendee of the summons and complaint upon him, whether said service be made in term time or vacation; * * * and in all cases at law, whether commenced by summons and complaint, attachment, or otherwise, any defendant failing for more than thirty days after service has been perfected upon him to appear and demur or plead, shall be held in default and any time thereafter judgment by default, on motion of the plaintiff, may be rendered against him: Provided, however, That the court may for good cause shown, allow such judgment so obtained by default to be set aside and demurrer or plea to it be filed on such
We have quoted these portions of the section at length and italicised some of its language in order that it may be seen by a mere reading of it that the court committed a reversible error in rendering the judgment by default.
It cannot be seriously doubted that this séction regulates the method of obtaining a judgment by default, and such a judgment cannot be rendered when, as here, the defendant has appeared and demurred. It is only when a defendant has failed to appear and demur or plead-, under the express language of the statute, that he can be held to be in default. Had the defendant appealed to this court from the judgment it would certainly have been reversed. This being true, it was wholly unnecessary that the application to set it aside should have been accompanied by an affidavit.
The cases of Elyton Land Co. v. Morgan, 88 Ala. 434; Lehman, Durr & Co. v. Hudmon, 85 Ala. 135, and Schwartz v. Oppenheimer, 90 Ala. 462, relied upon by petitioner to sustain the correctness of the judgment are not in point.. There were no regulations and conditions prescribed by the statutes, as here, under which the judgments in those cases were upheld.
The writ of mandamus must be denied.
