McCollum v. Birmingham Post Co.

tendencies, but lights and conflicting judge of the trial

a determination evidence, by the facts established presented, with responsive the issues as to whether

the conclusion establish fail found established asserted; should and there liability necessary every fact finding of be a judgment the court.

to sustain the * * *” So. 345. of the death noted the

As above hours of during his

workman occurred are of the evi and there tendencies

service from that he going show suffered

dence stepped aside he

retention of urine into one of himself and walked relieve doing so. gas legs as a cover while not warrant a Such act law, that he had

holding, matter of as a not entitled work and was

abandoned his Pipe compensation. Alabama Concrete 271. Berry, 226 Ala.

Co. v. violation

There was no issue wilful employer.

of the rules of noted, opinion

For am of the the error I circuit court and the

should be reversed cause remanded.

I, therefore, respectfully dissent.

SIMPSON, J., concurs.

65 So.2d689 v. BIRMINGHAM

McCOLLUM POST CO.

6 Div. 379.

Supreme Court Alabama.

March May 28,

Rehearing Denied - Tuscaloosa, McCollum, pro se.

Jas. Skinner, Wilkinson Birmingham, & ami- cus curiae.

BROWN, Justice. appeal This from a final of the Circuit Court Jef- County ferson dismissing plaintiff’s suit, against common law action for libel —a appellee February 18, 1950. The —filed only record shows file, pleading on plaintiff’s aside from complaint con- sisting a single count, was a demurrer filed defendant, legal which in ef- fect admitted alleged the facts in the com- plaint challenged sufficiency Leader, Tenenbaum, & Perrine Swed- pleaded to constitute a cause of ac- law, Birmingham, appellee. tion. So far appears as the case had not been- entered on the trial calendar or set for trial on the merits or for settlement pleadings. In another proceeding termed, “Motion Perpetuate Testimony,” filed May 23, 1951, prosecuted by the defendant provisions under the Chapter Article Code Tit. embracing §§ seq.; 491-498 et parte Ex Cross, 247 Ala. 22 So.2d sought defendant perpetuate plaintiff’s testimony as a wit ness as evidence the pending libel suit. Section Title Code of amended an Act of the Legislature, approved Alabama 23, 1949, Gen. June Acts of Ala.Reg.Sess.1949, p. 149, as fol testimony lows: “The may a witness conditionally taken perpetuated pro vided this article notwithstanding such may party witness be a suit in fact anticipation.” supplied.] [Italics purpose of this amendment was to avoid the holding of this court in parte Ex Brooks, 249 Ala. Winter Elmore, 88 Ala. and other dealing right cases -with the to the testimony witness. Notwith standing the person fact that proceeded party is a to a pending suit, as the proceeding him, relates to he is a mere witness. was; got last in the car where witness who application or place shown, away the automobile is drove from as we have proceeding

mentioned Wyatt same; got Leona into where proceeding in the common where part of the no Wyatt they “to got went after Leona the au- It addressed action of libel. law ; County, trip tomobile the details of the to Greens- Judges Honorable Jefferson boro, Alabama, or 14-th'day or about the Alabama,” alleges: February, 1949; all conversations styled in the above defendant “Comes place trip ; parties took between said be entered that an order moves cause and purpose trip; taking what who McCullom, plaintiff, requiring James Greensboro; long par- seen in how provided give appear and Greensboro; in of ties remained the details 1940,as of amend- Alabama by of the Code trip place the return to Bessemer the and motion, shows for ed, grounds said for Wyatt where he last saw Leona said oc- following: the Honorable unto this Court casion; being at- A. McCollum an James party defendant movant the “1. The is torney, parties the names the of Leona styled cause. the in above Wyatt’s family represented; on whom he McCollum, A. “The of James represented them; what occasions he for Alabama, Tuscaloosa, residence is whose purpose represented them; what he wheth- suit. of this necessary defense to the er or not representing he was them on the McCollum “3. That the said James trip by February, made him the 14th of it ex- the facts knowledge of has 1949; trip; for whom he said acting on was party the prove by said pected generally to request whether acting he was at the the about on or occurred incidents which parties trip; on the date of the said February, out of which day 14th exact time taking that was in said consumed that newspaper article the incidents arose trip and the exact in each time consumed has published which suit and for was ; stop day during night made the McCollum brought. same been James witness, whether the the was arrested on concerning knowledge facts has day February, any day 14th or sub- Alabama, Bessemer, by trip him to made sequent thereto; up- whether he made bond February, day of the 14th on or about arrest; on said charge what was made transportation used in said means of by against him; whether he was indicted automobile; he trip; where obtained Jury; the Grand was whether habeas was ob- behalf the automobile on whose upon served him is- after the indictment Bes- tained; the automobile to drove who sued Jury; the Grand place what took occasion; were said who semer on at the trial proceeding; said all facts .of occasion; in the car on said passengers and knowledge which A. McCollum James arrangements trip for to who made concerning has the truthfulness or untruth- occasion, pres- who on said was Bessemer fulness of the statements made in the news- purchased automobile was or ent when the paper articles which are the basis of this purpose trip; taking said rented litigation; the names and addresses of the trip; paid what cost who clients prior A. McCollum to James from followed Tuscaloosa route was day February, 1949; 14th the names and place Bessemer; what after ar- took addresses of his clients whom he claims places Bessemer; the that wit- rival employ publication ceased him after the Bessemer; where first he ness visited articles; of said nature of the business place Wyatt; what at the took Leona saw each of employed for which said clients long Wyatt; saw Leona first how he time him; the amount of remuneration he presence in the Wyatt Leona- all thereby lost concerning facts the ac- thereafter; what was said witness damages tual complaint. claimed in the Wyatt; Leona what Leona witness “Wherefore, witness; pres- defendant who moves the Court Wyatt said enter an order requiring witness was with Leona make and time the at the ent James appear at the with Leona witness went A. McCollum Circuit Court Wyatt; where the Wyatt Alabama, Leona of the Tenth Circuit of details as to how Wyatt; Judicial place as It is ordered and ad- such time and motion of defendant. Birmingham, at Court, orally by the court that this cause be and judged to be ex- by this may be fixed hereby provide in from this defendant, and same is dismissed amined plain- plaintiff upon to court on account of such failure failure said order time, orally testify with all at said tiff taxed appear and so execution entered in costs herein accrued dismissal be judgment of against may defendant and issue.” in favor of the cause plaintiff.” practice introducing se “The verify the facts attempt was made to An ad curing by deposition evidence taken Perrine, by Kenneth stated in said vance of the trial to the com was unknown at action attorney for defendant in the law, right mon and the to do so in actions before law, to the oath who subscribed dependent upon statutory provi at law is that, de- McElroy “the to the effect Judge * * p. therefor, sion 16 Am.Jur. styled party cause is a fendant in the above seq.; et Goodwater Co. Warehouse § the above stated this suit and Street, 137 Ala. 34 So. 903. the best his true to above motion are power to order the examina supplied.] knowledge and belief[Italics orally tion of witnesses in advance of trial the Notwithstanding, Judge the entered conferred, court, is not on the the but on following order: Judge, Judge Reg Circuit Probate and the foregoing “Upon of the consideration ister of power the Court and such Circuit affidavit, petition here- said is petition and statutory 1940, is Ti and limited. Code of hereby by is made granted and Order 7, tle con 491-497. And the statutes §§ entered, of allowing the examination James ferring power strictly must be adhered 1951, June, day on the 18th of A. McCollum to. in' County Courthouse at the Jefferson 497, 7, 1940, pro- Section Title Code of A. Alabama, 10:00 o’clock Birmingham, at vides as follows: M., date, examination on said said “If persons a trial be had between the the completed before until shall continue parties, described in the affidavit as actual Circuit. undersigned Judge of said expectant, or or their successors in inter- that notice of time “It is ordered est, upon proof insanity of the death or of given place of such examination be James trial, the witness at the time of such or that 498, by provided Section McCollum as A. he jurisdiction is not within the the 1940, 7, Alabama of as amend- Title Code court, copy deposition, the or a certified that the cited section note here ed.” [We thereof, may given by be in either evidence nonresident only applies to witnesses.] party.” shows that the order was The record requires The statute that the made A. McCollum the witness served on James the basis of the proceeding must be stated County Tuscaloosa on by the Sheriff by by applicant. verified oath Code 1951, deputy. June, through his day of 5th 1940, 7, Title seq.; 491 et 2 C.J.S., § McElroy Thereupon entered the fol- Judge Affidavits, pages 26, 982-983. The affida- § lowing order: vit before us in this compli- case is not in Perpetuate Testi- On Motion To “Order ance with the statute. ptff, mony. Motion of the time On 6/18/51 However, provisions of the statutes testimony taking of is continued for the 10, Chapter in 10, embraced Article Title 25, M. on for 11 A. 1951.” and set June 7, 1940, amended, complete Code are a taken, by step as shown the rec- next presented answer to the matters on the rec- entry, showing minute ord, was provide perpet- Said statutes for ord. the court: witness, uation of the of a do but power Entry. jurisdiction confer day this the 25th not or On on the “Minute by testimony, attor- so to a witness’ 1951,came the defendant its court June, punishment appear provision for give or make fails neys, and the obey court, failing on for now order of the testimony as ordered witness

93 might McCall, In Wilkinson v. Ala. result A different 247 register. judge or 230, 577, 581, proceeding had 23 this court ob if out been worked have ordinarily Chapter party Ti- served “It : is true that ‘a Article under been had contempt upon not the case is not entitled to insist but such tle §§ hearing trial of case out of which presented. contempt purges arose until he first himself May on call of the docket regular theOn 438; 12 contempt.’ Skirven Am.Jur. briefs, on 13, 1952, submitted this case was Skirven, v. 154 A. Md. 56 merits on the motions and 697; Jacoby Goettner, L.R. [Goetter] appel- of the motions One court. McCall, asking Ala. 427. But Bethea lant, appellee’s motion to dis- to strike authority payment to make motion to dis- because the appeal, miss the primarily services of W. H. is not Sadler pa- transcript transcribed was not miss himself, seeking a hearing for but for W. in Su- Practice required Rules of per as paid H. Sadler. Sadler entitled to Court, Tit. Code preme rule his services reason of his contract with was not en- Appendix; motion Bethea McCall made under sanction required by docket tered on court. Contempt, part if any, on We Supreme Practice. Court Rule 16 of deprive McCall rights. cannot Sadler his preliminary matters these have examined ” * * * act contumacious must be merit. See them as without regard committed the cause in which Powell, 199 N. N. & T. Richardson v. J. imposes punishment. C.J.S., Con Metropolitan Box v. p. 139, tempt, 97, note 4-1. § Co., 168 So. Ins. Life through 593, In 14 A.L.R.2d 580 the sub- assignm strike the Likewise the ject Contempt Punishment, of Civil is dis- — whole, the as because of a ents error as page cussed. we On 587 of such annotation Su Rule 1 of conform signments do not citations; find the following discussion and merit. Practice, preme is without Court Moskowitz, App.Div. 4 1, “In Levine 206 2 and v. error numbered Assignments of 597, 194, the court below Kin 200 where rule. N.Y.S. compliance with are strict stricken 480, answer ordered defendant’s Co., had 187 R. non v. & N. Louisville attend submit to an failure to for his 484, 65 So. only pursuant to a notice examination there above show that stated court, attorney, observ on his served plaintiff by default no sense a was in presently imposed ‘has penalty ing that the prosecution damages of his action for in the inherently pun nature as that of a same never alleged libel. His case had for contempt through disobedience ishment for calendar and been entered the trial subpoena’ ‘the for of an order presented by pleadings was only issue use,’ govern must its same consideration a complaint sufficiency to state of his statutory au there that since was no held libel, the defendant’s by cause for raised penalty a thority striking pleading for a appears It further wit- demurrer. a mere notice for disobedience of served by the proceeded against being ness was attorney, of party’s a the action the lower was, expressed in the defendant and improper and be court must reversed. was compulsion.” books, 14 A.L.R.2d “under striking The court observed: ‘The out p. Contempt— 583, Annotation —“Civil party’s pleading a and the allowance of en Punishment.” against try judgment upon him is based contempt, In cases of presumption constructive that his failure produce requires process produced due that the witness have proof to be by ordered the court by appear confesso, notice is, rule' cause an pro show admission of ad his why adjudged guilty he not be versary’s right should thereto because lack contempt pro punished in the manner merely merit his own cause. The courts by parte Bankhead, laws; law. vided Ex Legislature 200 administer enacts 102, 478; Oliver, Craddock v. 75 Pro them. In no Federal or State al decision 183, Judge, Ala.App. pleadings bate 123 lowing party’s 23 So. 87. a to be struck from 9á proper judicial judicated by entry by de- tribunal. and the

the files party may suspended upon right punish- failure of that This be had as a fault to production of contempt for the comply with an order ment of court but it would be action, is the court’s action in such against principles evidence most our sacred of Gov- power in court upon an inherent say based ernment to may it be forever * * * every In instance adjudication to act. so without an barred on the ” express an been authorized remedy a has merits.’ 14 A.L.R.2d 582. pro- no statute contains Since our statute. Elliott, leading Hovey In the case of v. pleadings striking out for the vision 215; U.S. 167 S.Ct. 42 L.Ed. pur- examination an to attend the failure majority A.L.R.2d rule is exem- pre- notice, nor authorizes suant to a plified, denying right the inherent of courts at- sumption against party failing to punish deny- contempt a defendant in judg- entry of tend, the-right gives nor view, ing him a hearing. The opposing produce evidence upon failure to ment a exemplified by Walker, Walker v. 82 N.Y. notice, testimony required by the severely 14 A.L.R.2d criti- Leg- penalty a cannot substitute in, and, effect, cized Hovey overruled prescribe.’ omitted to islature has Elliott, supra. v. Mani- (1909) “In Cotter v. Osborne Hovey Elliott, “In 167 U.S. toba L an order a referee which . 17 S.Ct. L.Ed. it was held that inuring the benefit struck out defenses pro a decree confesso entered after strik parties because of of absent interested ing defendant’s answer from the files as contempt defendants committed two punishment contempt for his refusing judg- consequence by default a entered obey money pay an order the court to parties held ment absent those proc into court was void for want due the order and erroneous both as to ess of law. The court at ‘Looking said: page judgment.” 14 A.L.R.2d the substance and not the form of de Shores, Nobles, “In Palm Inc. v. * * *, upon cree case which the Fla. where the court rights depend, in error isit plaintiff adjudging entered an order the plain substantially that the judgment was contempt be in of court and requiring it to efficacy one hearing, without a for of what pay money into the court a sum of within or avail appear was the summons to when upon a certain and that time such failure the court ren which issued the summons dismissed, plain the cause should stand the upon judgment theory its the dered that the stay contempt tiff filed a motion to the or inefficacious, summons was that the and de plaintiff der and allow the hearing, a but right appear fendant had no either to or to the court entered an order dismissing the ” be heard in his defense ?’ A.L.R.2d 14 plaintiff cause for failure of the pay the money it, adjudged against thereby forever barring pre the door of the courts to the In 5—Constitutional limitations § plaintiff by the alleged sentation of power his the of court under annotations “Civ- merely abating of action -cause instead of Contempt Punishment”, il 14 A.L.R.2d — plaintiff proceeding until the should 589, it is observed: “Courts have no inher- purge itself judgment contempt, punish of power contempt by ent denying it was held that such action contemner, hearing denied a to the striking and his plaintiff process due of law and that the pleadings entering judgment or default or judgment in far him, so as it dismissed the cause dismissal since one of fun- prejudice with court conceptions reversed. The of governing damental a court n said: ‘The plaintiff in this only cause had sub justice condemnation is after hear- a jurisdiction mitted itself to the of the court order of nature ing, and an denying legal rights determination of right, its distinguished a as contemner from a favor, process under our form of is void for of Government it is want due of elementary guaranteed privi of that he law in violation the Fourteenth Amend- ad- lege having the merits cause ment of of his Federal Constitution or a com-

95! contemplate- applicable does not state' The statute parable provision of the application that the constitution.” embody grueling should a examination in by this court was observed It it interrogatories the witness that but Covington Board Revenue case legal should follow substance and effect Merrill, 68 So. County 193 prescription Rule Rules Prac 979, that: tice in the Courts, Circuit and Inferior mony register of fense or before hear mond Wayne Mutual Life Ass’n] to be kansas, 212 U.S. merits.” tempt does Donough, 95 U.S. Neill, L.Ed. Reverting to the fuse right to S.Ct. Due Ct. [State “Due deny hearing to a parties shall have 370, L.Ed. 17 process and determine. heard 38 [McNeal] Packing assumes to prosecution of the the witness is of] applicant must make an affidavit S.Ct. process circuit 714, 24 L.Ed. defend in a the circuit L.Ed. 53 L.Ed. 204 New not include Hovey v. of law 841, 42 L.Ed. person in U.S. judge, v.Co. 896; Owl requires Jersey, 154 343, 351, statute, determine merits. 97; includes court that the necessary to Pennoyer v. U.S. main 565; Twining v. Elliott, 27 probate [State of] 211 U.S. jurisdiction to person Ann.Cas. 645. Scott contempt the applicant’s case its S.Ct. power to 34, 14 S.Ct. ^[322] Ass’n 215; Ham case on the requirement 167 v. Mc v. Mc 236, 51 judge power rights 78, 29 29 Neff, the de- right [Old U.S. con Ar testi- re S. a basis istered law; and right vis, provides, missal of affidavit him, process the entire proceeding tion, shall cy land, fail to Constitution of the United States. stitution and the 14th cures her) Our Reversed Section 13 of the and as those that every person, even within the State v. every meet the conclusion and without for granting his We This section of our constitution se Tit. and statement in said “That all courts shall be a toas have law, lands, result and citizen authority 7, Appendix, hold, therefore, Bush, Ala.App. 309, denial libel suit sale, foregoing protection a reputation. remanded. remedy by goods, person, is void. guaranteed against arbitrary justice denial, to the is without Constitution of Amendment to on the defendant’s application. requirements of the law of the p. places shall be or Marion v. due 55 A.L.R. 171. that the delay.” injury done legal application or process our Con him reputa- admin- action effica- open;, Code 1901 Da dis due So. (or (cid:127) expected generally “the facts stating and LIVINGSTON, J., SIMPSON,. C. and witness,” by proved is in sub- the to- be STAKELY, GOODWYN MERRILL,. and identical, require- the stance, not with if JJ., concur. in and of Practice Circuit of Rules ment Courts, 16, Code rule Tit. Inferior LAWSON, J., concurs in the result. prescribing what must be stated Appendix, continuance application for a because in an Rehearing. On of witness. See Code of absence a of the PER CURIAM. 7, p. The rule and stat- Tit. the contemporaneous. opinion urged It that coincident and is the confusing is are ute applied by to what meant legal and its effect as as is the authority were The rule of the respect Montgomery circuit judge proposal the case of & in to early We- to’ Webb, under Plank-Road Co. v. Ala. et tumpka section history seq., origin Title But it is and of the Code. clear and that such- parte by Brooks, any in 249 statute its collected Ex does not is terms confer statute in power pend- on the court which 32 So.2d 534. a suit is by authority judgment con suit than a default would be proposed. The ing is or justified court if of the circuit a defendant he should judge on the is ferred register. comply The whole refuse to an probate with such order. judge of or or court statutory. If the circuit procedure is opinion also stated that con- “Our respect con in that act in assumes to some judgment clusion and is that the affidavit re be court nection, act that would application statement to fail cus authority by tested its viewable requirements meet the foregoing Cross, 247 Ala. parte tomary methods. Ex efficacy entire is proceeding legal without (of judge a 378. But when 22 So.2d and as a result is void.” al order probate, makes an instance) point validity Counsel take that examination, an act it is not lowing the proceeding of the on be cannot considered any in that connection court. His order appeal; this but that different a method by subject to such extent is to review pursued be True, must to that val end. its for that established such methods as are idity necessary proper disposition is not to a begun proceeding an order. But the kind of appeal. of this But reversal affidavit, by by an order a an followed appeal dependent this not on is independent of specified procedure judge, is validity on proceeding perpet of the to any court. proposed pending or suit plaintiff’s testimony uate statement case, holding in this of the effect opinion to that effect was unneces refusal to approved, is that a again here sary. hand, invalidity On the other party to by such a submit to examination that proceeding justify a would refusal to suit, do in order a who is ordered to so plaintiff submit if to to it not otherwise perpetuate testimony, a is not contumacious justified. Merrill, Board Revenue v. contempt court in which act That an would be re pending proposed. And in suit is or why other plain reason dismissal of procedure author spect there is no such tiff’s But case erroneous. hold we ity him a on which punish of law although proceeding such may be has proceeding jurisdiction no over compliance statute, with the a failure in court rightly suit been conferred. His respond to it without does more an occur reason of cannot be dismissed justify not his suit dismissal of in which arising in an respect a matter rence in testimony, taken, might might such if in that proceeding not court. other not be available as evidence. power pun- inflict All courts have Appellee takes us to task contempt speci- fo~ causes ishment proceeding considering validity 13, Code, which is Title fied in section appeal. agree all at this We The cause to those causes. also limited only directly to attack it method is man specified. not there here claimed exist damus, appealable. it is not since Ameri 13, Code, all courts By 4(3), Title section Life Powell, Ala.Sup., can Ins. Co. v. power compel “To obedi- given have been parte Cross, supra. Ex But if process, judgments, orders and ence its void, invalidity may it is its asserted court, judge out of a an and to orders attack, is, collateral when nec therein.” proceeding action or essary pro to a decision of the collateral here application provision has no That ceeding. being unnecessary But to a deci by judge order made a was no because there appeal, sion feature proceeding in the Circuit action an opinion, supra, should be eliminated with County. Therefore, ap- Court of Jefferson question. ruling out a on that disobey- not in the attitude of pellant was progress Appellee again order made ing to a lawful calls attention pending circuit lawfully appeal, insisting a its motion dismiss the cause plain- appellant, 1951, on 27, who is it was taken December refusal court. A court, respond from decree in a suit tiff June 7, Code, assignments of error relate. Title If'that under section proceeding true, nothing appearing justify of that else a dismissal were to a con- more no would LAWSON, effect, would be well taken. trary the motion Justice. the bond Code. But Section Title ques appeal presents the identical This ap- appeal security costs of were and for Bir day in McCollum v. tions this decided 22, 1951, proved within on December Company,1 mingham Post 689. So.2d period. citation issued month The was six case, the holding In in that view of the The executed on December 1951. and appealed from is reversed here time, appeal due it is im- was taken in cause is remanded. issued material that the citation was Reversed and remanded. for expired executed after the time had City An- appeal. Austin taking the v. LIVINGSTON, BROWN, J.,C. niston, 410; Parker STAKELY, SIMPSON, GOODWYN, and Bedwell, So.2d 893. MERRILL, JJ., concur. v. appeal The motion to dismiss was not

well taken. opinion

The should modified so as be affidavit

eliminate the statement that respect perpet- and statement made in void, testimony appellant

uating application rehear- and as modified 65 So.2d 697 ing should overruled. James A. McCOLLUM BIRMINGHAM v. opinion foregoing rehearing The on NEWS CO. prepared FOSTER, Supernumerary 6 Div. 380. Judge serving of this Court it at while Supreme Court of Alabama. request Justice, au- of the Chief under March 1953. thority 32, Code, and of Title section adopted by opinion. the Court as its Rehearing May 28, Denied 1953. Opinion re- Application modified. hearing overruled.

All the concur. Justices McCollum, Tuscaloosa, pro A. se. Jas. Hawkins,

Deramus, Mullins, Fitts & Birmingham, appellee.

Wilkinson Skinner, & Birmingham, curiae. amicus 65 So.2d 697 STAKELY, Justice. A. McCOLLUM BIRMINGHAM James appellant filed ap- suit POST CO. pellee in the lower court for ap- libel. The 6 Div. 381. pellee sought to Supreme appellant Court Alabama. seq., under 491 et Title § Appellant of 1940. Code failed March ap- pear to give testimony as ordered Rehearing May 28, Denied motion of appellee was dismissed

cause the court. judgment of the lower court re- (cid:127) McCollum, Tuscaloosa, pro se. versed and the cause is remanded on the Jas. authority of McCollum v. Birmingham Tenenbaum, Leader, Perrine & Swed- Co., ante, p. 88, Post 65 So.2d 689. law, appellee. Birmingham, for Reversed and remanded. Skinner, Birmingham, & ami- Wilkinson All the cus curiae. concur. Justices Ante, p.

Case Details

Case Name: McCollum v. Birmingham Post Co.

Court Name: Supreme Court of Alabama

Date Published: Mar 13, 1953

Citation: 65 So. 2d 689

Docket Number: 6 Div. 379

Court Abbreviation: Ala.