Opinion
8 Div. 24.
December 7, 1939.
Appeal from the Law and Equity Court, Franklin County, W. H. Quillin, J.
J. Arnold Teks, of Russellville, for petitioner.
The Law and Equity Court of Franklin County is an inferior Court. Atkins v. State, 27 Ala. App. 212, 169 So. 330. No presumption is indulged in favor of the decree of such court. Commissioners Court v. Thompson, 18 Ala. 694; Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Grayson v. Schwab, 235 Ala. 398, 179 So. 377. The chancery Court cannot of its own motion vacate a decree on ground it was procured by collusion. Ex parte Kay, 215 Ala. 569, 112 So. 147.
W. H. Quillin, of Russellville, pro se.
A divorce decree procured through collusion or fraud practiced on the court, or without sufficient evidence to support the decree may be set aside and vacated by the trial court ex mero motu at any time within thirty days after the decree is rendered. Ex parte Favors, 225 Ala. 675, 145 So. 146; First Nat. Bank v. Garrison, 235 Ala. 687, 180 So. 690; Taylor v. Jones, 202 Ala. 18, 79 So. 356. Reese Reese v. Burton Watson Undertaking Co., 28 Ala. App. 384, 184 So. 820; Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414. Setting aside decree within 30 days is a matter of discretion which cannot be reviewed by appeal or mandamus. Ex parte Upchurch, 215 Ala. 610, 112 So. 202; Simpson v. James R. Crowe Post No. 27, American Legion, 230 Ala. 487, 161 So. 705. Courts of record have inherent power, independent of statute, to vacate their decrees or judgment at any time before decree is final or the Court has lost control over it. Batson v. State, 216 Ala. 275, 113 So. 300. The Law and Equity Court of Franklin County has concurrent jurisdiction with the Circuit Court in granting and vacating divorce decrees. Local Acts 1923, p. 272, §§ 1, 5, 10, 11, 15; Hopkins v. Hopkins, supra; Willis v. Hovater, 22 Ala. App. 633, 118 So. 766; Bozeman v. Dillard, 213 Ala. 223, 104 So. 402; James v. State, 21 Ala. App. 295, 107 So. 727; Cadle v. Bland, 213 Ala. 665, 106 So. 170; McMurray v. Board of Education, 216 Ala. 144, 112 So. 644; Werner Sawmill Co. v. Vinson Bolton 220 Ala. 210, 124 So. 420.
The Law and Equity Court of Franklin County, created by local act No. 404, approved September 28, 1923, has concurrent equity jurisdiction with the circuit courts of the state. Loc.Acts 1923, p. 272.
The jurisdiction to grant divorces is purely statutory and courts upon which jurisdiction is conferred, in Alabama, are quoad hoc courts of statutory and limited jurisdiction. Martin v. Martin et al., 173 Ala. 106, 55 So. 632; Tillery v. Tillery, 217 Ala. 142, 115 So. 27.
The circuit court, as a court of equity, is always open for the transaction of business, and under the provisions of §§ 6636, 6667 and 6670, figuratively speaking, the final judgments and decrees of the court remain in the breast of the court and subject to its plenary power for thirty days from the date they are rendered. Ex parte Howard, Howard v. Ridgeway et al., 225 Ala. 106, 142 So. 403.
This rule is by the act of its creation applied to the Law and Equity Court of Franklin County, §§ 10 and 15, Local Acts 1923, pp. 274, 275.
The order vacating the final decree was well within thirty days from its rendition and the court had the power ex mero motu to set aside and vacate the decree and restore the cause to the trial docket.
The writ of mandamus is therefore denied, and the petition dismissed.
THOMAS, BOULDIN, and FOSTER, JJ., concur.