Ex parte Heflin

STONE. J. When this cause first come before us, we thought the petition was insufficient; and, for that reason, we awarded a mandamus nisi. The point argued before us is, that the petition is not filed in the name of the defendant to the judgment. We now think this point not well taken. The petition sets forth that a judgment was recovered by J ohn T. Heflin against the Bock Mills Manufacturing and Lumber Company, which is a corporation. Corporations can not make oaths. Hence, whenever it becomes necessary, in judicial proceedings by or against corporations, for affidavits to be made to pleadings or otherwise, some officer of the corporation, or some agent cognizant of the facts, must necessarily make the affidavit. To hold otherwise would [98] greatly embarrass corporations in the conduct of litigation. Griffin v. State Bank, 17 Ala. 258; Br. Bank v. Coleman, 20 Ala. 140. The first sentence of the petition, it is true, sets forth that Fountain P. Randle is president of the Rock Mills Manufacturing and Lumber Company. It does no more. Randle verified the petition. This he should have done. All the averments of the petition set forth grievances done to and suffered by the corporation; and the prayer is that the circuit judge “ grant to the Rock Mills Manufacturing and Lumber Company a rehearing,” &c. We hold the petition sufficient. The averments of fact in the petition were not controverted before the circuit judge. Prima facie they are sufficient to authorize a rehearing under sections 2814-15 of the Revised Code. If true, the defendant in the circuit court had a defense to the action, which it was prevented from making both by surprise and mistake, and without fault on its part. The presiding judge had announced from the bench, that no other litigated cause would be tried during the term. This case was litigated; for a plea to the merits had been filed in the pause. The agent and attorney of the defendant were justified in leaving the court under this announcement, and did not thereby incur any imputation of fault or neglect. The surprise and mistake are shown in the fact, that although the judge had announced that no other litigated cause would be tried, and thereby induced the agent and attorney to leave the court; and although there was filed in the cause a plea to the merits, in bar of the whole action ; yet, by mistake, as we suppose, both the counsel for plaintiff and the court proceeded to try the cause as undefended; and a judgment was rendered against the defendant by default. Had it been known that such plea was on'file, the court, after the announcement previously made, would not havg felt authorized to take up the cause for trial; and certainly would not have rendered judgment by default, when a material issue had been formed.—Woosley v. M. & C. Railroad, 28 Ala. 536; Rhodes v. McFarland, 43 Ala. 95 ; Thomas v. Brown, 1 Stew. 412 ; Crow v. Decatur Bank, 5 Ala. 249. _ We can not anticipate what will, or should be the disposition of the application for a rehearing-, if the averments of the petition be controverted under the last clause of section 2815 Revised Code. The writ of mandamus is refused, and the rule heretofore granted discharged, at the costs of said John T. Heflin.