Opinion
4 Div. 118.
June 9, 1925.
Original petition by S. R. McLeod for mandamus to Hon. J.S. Williams, as Judge of the Circuit Court of Barbour County. Writ awarded.
W.H. Merrill, of Eufaula, for petitioner.
The judgment was void and incapable of amendment. Mobile Co. v. Williams, 180 Ala. 639, 61 So. 963; Ex parte Ala. Fuel Iron Co., 193 Ala. 496, 69 So. 115. Mandamus will be awarded to vacate a void order or decree. State ex rel. v. Brewer, 19 Ala. App. 330, 97 So. 777; Ex parte Cunningham, 19 Ala. App. 584, 99 So. 834.
G.L. Comer Son, of Eufaula, for respondent.
Brief of counsel did not reach the Reporter.
On January 13, 1925, this court by its judgment determined and declared that a certain judgment entered upon the minutes of the circuit court of Barbour county, Ala., at Eufaula, on the 25th day of August, 1924, in favor of Home Pattern Company v. S. R. McLeod was entered without authority of law and was void. McLeod et al. v. Home Pattern Co., ante, p. 430, 102 So. 597.
On January 22, 1925, the Honorable J.S. Williams, judge of the circuit court of Barbour county, Ala., granted a motion to amend the judgment which this court had previously adjudged to be null and void, and directed the clerk of said circuit court of Barbour county, Ala., at Eufaula, to amend said null and void judgment so that the same would show that the amount recovered was $491.
The petitioners pray for the writ of mandamus to the said Honorable J.S. Williams, judge of the circuit court of Barbour county, requiring him to vacate, annul, set aside, and strike from the record of the circuit court of Barbour county, Ala., at Eufaula, the docket entry and judgment entry set out as Exhibit A to the petition.
On March 24, 1925, the rule nisi issued to said judge, and on May 1, 1925, his answer was filed in this cause, in which he alleges that in all of his acts and doings in the premises he was acting strictly within the terms of the law of the state of Alabama, and it is said in the answer that this court did not intend to hold and did not hold that the judgment of the circuit court of Barbour county, Ala., at Eufaula, entered on the 28th day of January, 1924, during term time, was void and of no effect. But the judgment referred to was not entered in the circuit court of Barbour county, Ala., at Eufaula, on the 28th day of January 1924. On that date the said judge made certain bench notes providing that "judgment was rendered for plaintiff for the amount sued for, as shown by the complaint," and which bench notes could have been changed and altered at any time within 30 days by said judge from the date of said entry, so as to show that a judgment was to be entered in behalf of the plaintiff for the sum of $491. But nothing whatever was done to said bench notes within 30 days, and the clerk of said court did not, within 30 days from the 28th day of January, 1924, enter a judgment in said cause on the minutes of the court. The clerk of the court entered a judgment in said cause on the 25th day of August, 1924, at a time when the clerk had no right or authority to enter said judgment. This court pronounced that judgment null and void, and the judgment of the circuit court of Barbour county, Ala., was annulled by the judgment of this court, made and entered on the 13th day of January, 1925.
The judgment of the circuit court of Barbour county, at Enfaula, which was entered on the 25th day of August, 1924, having been declared null and void by this court, and the same having been annulled by this court, there was no judgment of said court to be amended by a motion nunc pro tunc. The circuit court of Barbour county, at Eufaula, erred in granting said motion. The judgment of the circuit court of Barbour county, at Eufaula, of date of January 22, 1925, granting said motion, having been erroneously made and entered, and petitioners being without other remedy, let the writ of mandamus issue as prayed for. Wynn et al. v. McCraney et al., 156 Ala. 630, 46 So. 854; Ex parte Cunningham, 19 Ala. App. 584, 99 So. 834; Mobile County v. Williams, 180 Ala. 639, 61 So. 963; McLeod et al. v. Home Pattern Co., ante, p. 430, 102 So. 597.
Mandamus awarded.