Summary
In Ex parte Bozeman, 213 Ala. 223, 104 So. 402, a judgment by default was interlocutory until there was a proper assessment of damages by the jury on execution of a writ of inquiry, that the 30-day statute did not apply, and the court did not lose control over the cause, and may thereafter restore it to the docket, that the writ of inquiry be executed and a "valid judgment," a final judgment, be entered on execution of the writ and pursuant to the jury's verdict and assessment of the damages.
Summary of this case from Gulf Electric Co. v. FriedOpinion
8 Div. 748.
April 16, 1925. Rehearing Denied May 28, 1925.
Appeal from the Equity Court, Franklin County, Hon. B. H. Sargent, Judge.
Stell Quillin, of Russellville, for petitioner.
The order or judgment setting aside default judgment was void, and mandamus is the proper remedy. Ex parte Margart, 207 Ala. 604, 93 So. 505; Mt. Vernon Mills v. Judges, etc., 200 Ala. 168, 75 So. 916; Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304; Local Acts 1923, p. 274, § 10; Code 1923, §§ 7881, 6670; Sou. Ry. v. Blackwell, 211 Ala. 216, 100 So. 216; Howard v. Ala. F. I. Co., 208 Ala. 500, 94 So. 531; Ex parte Cunningham, 19 Ala. App. 584, 99 So. 834.
Williams Chenault, of Russellville, opposed.
The judgment by default was an interlocutory order, and remained in the court subject to further action. The court did not lose control over it, under either the 30-day or 4-month statute. Martin v. Price, Minor (Ala.) 68; Ex parte Overton, 174 Ala. 256, 57 So. 434. Petitioner could not withdraw her demand for a jury, and the judgment without a jury verdict was unauthorized and void. Prudential Cas. Co. v. Kerr, 202 Ala. 259, 80 So. 97; Insurance Co. v. Lowe, 208 Ala. 12, 93 So. 765; Ex parte Florida, etc., Co., 201 Ala. 97, 77 So. 391.
The petition is for mandamus to the judge of the law and equity court of Franklin county, to vacate an order made on motion as to assessment of damages by the court after default when a jury was demanded.
The provisions of section 7881, Code of 1923, are specific, in that either party may have the damages assessed by a jury. The statute merely declares the rule established by this court concerning the right to a jury when demanded, and the same may not be waived without the consent of the adverse party. Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; Ex parte Florida Nursery Trading Co., 201 Ala. 97, 77 So. 391; Hartford Fire Ins. Co. v. Bannister, 201 Ala. 681, 79 So. 253; Liverpool, etc., Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765.
The judgment by default against defendant was interlocutory until there was a proper assessment of the damages by a jury on execution of writ of inquiry. The 30-day statute has application to a valid judgment. Code 1923, § 6670. The court did not lose control over the judgment by default to restore the case to the docket for the execution of the writ of inquiry and a proper assessment of the damages by a jury as demanded by the plaintiff. Moreover, there was no motion made or application by petitioner to the court to set aside the order complained of. Ex parte Edwards, 123 Ala. 102, 26 So. 643; Hill v. Tarver, 130 Ala. 592, 30 So. 499; Moseley v. Collins, 133 Ala. 326, 32 So. 131.
The writ is denied.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.