Chastain & Lawrence v. Armstrong

SOMEB.YILLE, J. The circuit judge refused to grant the application for rehearing under the statute (Code, 1886, §§ 2872-2880) during the vacation, sustaining a demurrer to the petition of the defendants in the judgment. This not being a final judgment of any court from which an appeal would lie, but a mere ruling of the judge out of term time, we may concede that the appropriate remedy of the petitioners to correct the alleged error of the ruling would be by mandamus. — O'Neal v. Kelly, 72 Ala. 559. It does not fall within the class of remedial writs mentioned in section 3616 of the Code of 1886, which authorizes an appeal to be taken from the judgments of judges of the Circuit and City Courts, rendered in certain cases at chambers. The petition was fatally defective, and the demurrer to it was properly sustained on several grounds. It failed to show that the petitioners, as defendants in the original suit, had a good and meritorious defense to the action. The averment of this general conclusion was totally insufficient. The facts constituting the supposed defense must be stated, so that the court may judge of their sufficiency. — Dunklin v. Wilson, 64 Ala. 162. These the petition did not state, and the assignment of the demurrer based on that defect was properly sustained. The petition was further defective, in failing to show that the petitioners, as defendants in the suit, were ivithout fault in neglecting to present their defense on the trial of the cause. — Code, 1886, § 2872. It is immaterial that they were non-residents of Alabama, and were not personally brought into court by actual notice of the attachment upon their property. They executed a replevy bond in the cause, and [218] tlais fact operated as an admission of notice, both of tbe levy and of tbe suit, and was sufficient to sustain a judgment by default at tbe first term, tbe bond being executed twenty days before tbe commencement of tbe term. — Peebles v. Weir, 60 Ala. 413; Drake on Attach. (6th Ed.), § 332. Tbe defendants, being thus made cognizant of tbe levy of tbe attachment, and of tbe pendency of tbe suit, were conclusively charged with a knowledge of tbe time of bolding tbe next term of tbe Circuit Court of Cleburne county, which was fixed by law, so as, in this casé, to fall on tbe last Monday in July, 1885. — Acts 1884-85, p. 85. Tbe recital in tbe writ of attachment, that it was returnable to “tbe next term of tbe Circuit Court for tbe county of Cleburne, to be held at tbe court-house thereof, on the first Monday in August, 1885,” did not vitiate tbe process. Tbe law fixed tbe term of tbe court, and this would control any false or mistaken recital of tbe clerk as to the particular day when tbe term commenced. — Findley v. Ritchie, 8 Port. 452; Yonge v. Broxson, 23 Ala. 846. In view of these conclusions, tbe petitioners were necessarily at fault, in failing to appear at tbe term of tbe court when tbe cause was called for trial. They do not, therefore, bring themselves within tbe provisions of tbe statute. — Code, 1886, § 2872, and cases cited in note. Tbe application for mandamus must be denied, and tbe appeal dismissed.