Dulin v. Johnson

SOMERVILLE, -J. The defendant’s motion for the transfer of the case from the law side to the equity side of the docket, was not verified by affidavit as required by the statute, and the demurrer to the motion was properly sustained on that ground. " Code, § 6490; Briggs v. Prowell, 207 Ala. 629, 93 So. 590. And, it should be added, the motion does not allege facts sufficient to justify the removal sought. Under section 6670 of the Code, to sustain a judgment of the court granting a motion for a new trial after the lapse of more than 30 days from the date of the original judgment, the record must show an order made within the 30 days, “continuing [the motion] for hearing [at] a future day.” Otherwise the judgment for new trial is void for want of jurisdiction. Howard v. A. F. & I. Co., 208 Ala. 500, 94 So. 531, and cases cited therein; Ex parte Margart, 207 Ala. 604, 93 So. 505. Under this statute and these decisions the order and judgment of the circuit court of March 27, 1925, setting aside the judgment of nil dicit and restoring the cause to the trial docket, was null and void; and it was proper for that court to make an order at any time, on plaintiff’s motion without notice to the defendant, vacating and annulling the void .judgment. Johnson v. Johnson, 40 Ala. 247, 251; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184; Hobson-Starnes Coal Co. v. Ala., etc., Co., 189 Ala. 481, 66 So. 622. But, of course, the voided judgment was just as void without the order of vacation. Under section 6710 of the Code, which counsel for appellant seems to have overlooked, a circuit judge may make orders, interlocutory or final, in any cause pending before him, if he be anywhere within the state. Appellant contends that the order and judgment of March 27, 1925, shows that the plaintiff .was present, participating in the hearing of defendant’s motion on its merits, and that this operated .as a waiver of the discontinuance of the motion. It is, indeed, the settled law that, when a party appears and unreservedly contests a motion for new trial on its merits; he waives the right to insist upon a previous discontinuance of the motion. Ex parte Schoel, 205 Ala. 248, 87 So. 801. The record here shows that the trial judge made this indorsement on the motion docket: “Motion granted, judgment set aside, and cause reinstated on the docket for new trial, and plaintiff excepts.” The formal judgment entry shows merely that the motion was heard and considered and adjudged. • This is wholly insufficient to show any contestation of the motion on its merits. Doubtless, the exception was noted by the trial judge pro forma, according to a very general custom, but, even if actually taken by the plaintiff, it carries no implication of a contestation of the motion on its merits. The petition for rehearing filed by defendant, ostensibly under the four months’ statute (Code, § 9521), set up some grounds not available under that statute, along with the single allegation that “defendant has been prevented from making his defense in said causfe by accident, mistake, fraud, or surprise.” This showing, without showing also that defendant was without fault in the premises, is not sufficient for relief. White v. Ryan, 31 Ala. 400; Stewart v. Williams, 33 Ala. 492. Moreover, there was a total failure on the part of the petitioner to comply with the requirements of the statute (Code, § 9522). The petition was not sworn to, and the record *396 does not show that any attempt was made to give to plaintiff the 10 days’ notice prescribed, nor to serve bim with a copy of the petition. These defects and omissions were set up by plaintiff as grounds for her motion to strike the petition. As said by Walker, P. J., in Zavello v. Goldstein, 3 Ala. App. 478, 481, 57 So. 102, 103: “This being true, the defendant had not entitled himself to prosecute the proceeding, and the court was not in error in dismissing his petition.” It matters nothing that the petition was stricken instead of being dismissed or overruled. We note, however, that the petitioner offered some evidence on the hearing of his motion, and was given an opportunity to sustain his allegation of accident, surprise, mistake, or fraud, and that no evidence was offered on that issue. So whatever the form of the order, whether striking, dismissing, or overruling the motion, defendant cannot complain of injury. When a motion is made to strike or dismiss an adversary petition or pleading, our practice does not sanction a demurrer to the motion, but the court will proceed to'grant or deny the motion according to its merits. Defendant insists that the judgment for plaintiff on the note sued on is excessive, in that it contains an allowance of $100 for attorney’s fees for collecting the note, the argument being that the amount of the fee was necessarily unliquidated and could only have been ascertained by evidence taken under a writ of inquiry; and therefore — the record not showing such . an ascertainment — the judgment is erroneous upon the face of the record itself. It does not ‘appear how the court arrived at the amount of the judgment as rendered. The amount claimed is the face of the note, $648, with interest from December 17, 1921, less a credit of $68 on March 5, 1923, and an attorney’s fee of $100. The amount of the note, principal, and interest, after allowing for a credit of $68 on March 5, 1923, was about $732, calculated to the day of the judgment. Since the only other item which could have entered into the judgment was the attorney’s fee, it is apparent that the court included in the amount of the judgment an attorney’s fee of about $85. An inquiry to ascertain the amount due on the note for principal and interest was not necessary, because that amount was liqui,dated — being fixed by the note itself. McGowin v. Dickson, 182 Ala. 161, 170, 171, 62 So. 685; Code, § 9495. But the amount of the attorney’s fee was an unliquidated item for which judgment could not properly be rendered without its ascertainment upon a hearing of testimony. The judgment record shows a judgment by nil dicit without showing any inquiry by the court for the ascertainment of a reasonable attorney’s fee and therefore the judgment is erroneous as to its amount in excess of $732. Greer v. Liipfert-Scales Co., 156 Ala. 572, 575, 47 So. 307; Garnett v. Scott, 207 Ala. 263, 92 So. 408. Section 7881 of the Code of 1923 provides that in all cases of default, when damages are to be assessed, the court may “hear the evidence and assess the damages without a jury”; but, while this dispenses with the formal writ o'f inquiry before a jury, it does not dispense with the necessity of showing that the court has heard evidence before fixing and adjudging the amount of the damages. If plaintiff enters a remittitur of that excess within 30 days hereafter, the judgment will be affirmed as to the residue, at the cost of plaintiff. Otherwise, the judgment will be reversed and the cause remanded. Corrected and affirmed conditionally. ANDERSON, O. J., and THOMAS and BROWN, JJ., concur.