Gray v. Bank of Moundville

107 So. 804 | Ala. | 1926

This bill was filed to cancel or vacate a judgment by default rendered by the judge of the Seventeenth judicial circuit at Linden in the circuit court of Greene county. Many of the points of attack made against said judgment have been decided adversely to appellants in the recent case of Carothers v. Callahan, 93 So. 569, 207 Ala. 611. It is insisted, however, by appellants' counsel, that in said case the court had adopted a rule as authorized by the latter part of the Act of 1915, p. 825, prescribing the time and place of calling cases for judgments by default, and that said rule authorized the transmission of the paper, etc., to one of the judges at any point in the circuit; that in the present instance there was not only no such rule, but one existed providing for the hearing of jury and nonjury cases at a place and time different from the date of and place of rendering the judgment in question. This, however, did not go to the jurisdiction or power of the judge, but was an irregularity which would have given the defendant in the judgment perhaps good grounds for a new trial as for deceit or surprise, but is not available to these complainants, who were not parties to the suit. We do not regard the latter part of the act as to a rule as mandatory, but discretionary, and not a condition precedent to the rendition of the judgment in question.

It is urged that the law authorizes the court and not the judge to render judgments, and that Judge Jones was not at the time a court. The word "court" is frequently used as meaning the judge when he is exercising any judicial powers conferred on him by law. Carothers v. Callahan, 93 So. 569, 207 Ala. 611; State v. Baudoin, 40 So. 42, 115 La. 773; A. C. L. R. R. v. Mallard, 43 So. 755, 53 Fla. 515; Sartin v. Snell, 125 P. 47,87 Kan. 485, Ann. Cas. 1913E, 384. The case of Scott v. State, 37 So. 366, 141 Ala. 39, does not hold to the contrary in all instances and under all circumstances. It merely holds that the statute there considered required the physical action of the judge in drawing the jury, a ministerial and not judicial act, and did not mean court. Moreover, this Scott Case has since been explained and to a certain extent departed from. Rogers v. State, 52 So. 33, 166 Ala. 10; Gray v. State (Ala. Sup.) 39 So. 621.

It may be that Judge Jones, when rendering the judgment at Linden, was not a court; yet, under section 139 of the Constitution, judicial power could have been vested in him, and, while there may have been no express legislative vesture of such power, the whole scheme in providing for the handling and disposition of default cases raises a necessary implication that they may be disposed of by the judge outside of the court in which the suit was brought. At least, this is the effect of the holding in Carothers v. Callahan, supra.

The circuit court did not err in sustaining the demurrer to the bill of complaint, and the decree is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.