Opinion
6 Div. 300.
April 5, 1938.
Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.
Garnishment suit by A. Paul Goodall Real Estate Insurance Company, plaintiff, against Jackson Securities Investment Company, garnishee. From a judgment for plaintiff, the garnishee appeals, and plaintiff moves to dismiss the appeal.
Motion to dismiss overruled.
The judgment appealed from is as follows:
"December 30, 1937.
"In conformity to the judgment of the Court of Appeals of Alabama handed down on November 16th, 1937, the garnishee, Jackson Securities and Investment Company, a corporation, is ordered to pay into this Court to await the orders of the Court the sum of three hundred thirty-three 74/100 Dollars ($333.74) the amount of the judgment in the original cause numbered 70123 against the defendant J. H. Vaughn and in favor of the plaintiff A. Paul Goodall Real Estate and Insurance Company, a corporation, together with interest on said judgment from the date of its rendition, the same being on January 20th, 1932, to the date of this order, in the further sum of One Hundred thirty-nine and 05/100 dollars ($139.05); and it is further ordered that the said garnishee pay into this Court, to await the orders of the Court, the following other, further and different sums of costs accrued in the various actions instituted by the plaintiff in this Court to aid in the recovery of the amount of said judgment, namely:
"1. The sum of twelve and 45/100 dollars ($12.45) costs in this Court in said original suit numbered 70123.
"2. The costs of appeal accruing in the Court of Appeals of Alabama in the appeal of the cause numbered in this Court 97318 in the further sum of thirty-eight and 50/100 dollars ($38.50).
"3. The sum of fifteen and 25/100 dollars costs in this Court in that certain proceeding of garnishment numbered 88236.
"4. The sum of nine and 45/100 dollars ($9.45) costs in that certain proceeding in this court for the discovery of assets of this defendant numbered 96705.
"5. The costs accrued in that certain garnishment proceedings in this Court wherein Jackson Securities and Investment Company is garnishee numbered 97318, said costs being in the amount of Eighteen and 40/100 dollars ($18.40) the total of which said sums amounting to $566.84 is hereby condemned and ordered paid into Court in satisfaction of said judgment, interest and costs as foresaid unless it be that the total of said judgment, interest and all of said costs exceed the amount now due and owing to the defendant by said garnishee as disclosed by its answer, in which event only such amount is hereby condemned and ordered paid into this Court as is now due and owing to defendant by said garnishee as disclosed by its answer; and execution for the remainder is suspended until said remainder or a sufficient amount thereof to satisfy this order matures; and in the event such amount is insufficient to fully discharge said judgment, interest and costs, said amount is condemned to the satisfaction of the judgment, interest and costs accrued against the defendant pro tanto and this garnishment is continued for the garnishee to make its further oral answer as to any additional amount or amounts becoming due from said garnishee to the defendant arising out of any contract or contracts existing between defendant and said garnishee pending this garnishment proceeding; and this cause is continued to February 3rd, 1938 at 10 o'clock A. M. for further oral answer by said garnishee Jackson Securities and Investment Company in open court as to any other or further indebtedness which has or may have accrued owing by said garnishee to defendant between the time of the service of the writ of garnishment and the time of the making of the said oral answer of the garnishee on the said third day of February, 1938."
Wm. H. Ellis and Murphy, Hanna, Woodall Lindbergh, all of Birmingham, for appellant.
Judgment rendered by circuit court after remand from appellate court with directions to enter a judgment for plaintiff against garnishee, requiring circuit court to ascertain amount due on judgment, is a final judgment and is appealable as against contention that circuit court in rendering judgment performed mere ministerial act and real purpose of appeal is to obtain a second rehearing. First Nat. Bank v. Garrison, 235 Ala. 94, 177 So. 631; Jasper Land Co. v. Riddlesperger, 25 Ala. App. 45, 140 So. 624; Sugar Valley Land Co. v. Johnson, 17 Ala. App. 409, 85 So. 871; Code 1923, §§ 6078, 6133, 8085; Dawson v. Birmingham, 216 Ala. 641, 114 So. 221; Garry v. Jenkins, 109 Ala. 471, 20 So. 8; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502; Gibson v. Alexander, 231 Ala. 77, 163 So. 601. The appellate court will be governed by its opinion of the law at the time a case is before it for review, regardless of its former ruling. First Nat. Bank v. Garrison, supra; Code 1923, § 10287.
Amzi G. Barber and Hugh Barber, both of Birmingham, for appellee.
The cause was remanded to the circuit court with directions to enter a judgment in accordance with the opinion of the appellate court. The judgment entered by the circuit court in conformity with such directions is not such a judgment as will support an appeal. Code 1923, §§ 8071, 6083, 6670, 8073-4; Hurst v. Home Protection Fire Ins. Co., 81 Ala. 174, 1 So. 209; Craft v. Hubbard, 93 Ala. 22, 9 So. 328; Montgomery Iron Works v. Roman, 147 Ala. 434, 41 So. 811; Attorney General v. Steele, 216 Ala. 674, 114 So. 57; State v. Heflin, 19 Ala. App. 222, 96 So. 459; Ex parte Echols, 39 Ala. 698, 88 Am. Dec. 749; Johnson v. Glasscock, 2 Ala. 519; Lyon v. Foscue, 60 Ala. 468; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Knight v. Farrell, 113 Ala. 258, 20 So. 974; Douglass v. Montgomery, 124 Ala. 489, 27 So. 310; Donnell v. Hamilton, 77 Ala. 610; Montgomery v. Gilmer, 33 Ala. 116, 70 Am.Dec. 562; North Birmingham Trust Sav. Bank v. Hearn, 211 Ala. 18, 99 So. 175; Gen. Acts 1915, p. 707, § 3; Barton v. Burton Mfg. Co., 202 Ala. 180, 79 So. 664; Ex parte Margart, 207 Ala. 604, 93 So. 505; 4 C.J.S., Appeal and Error, §§ 1355, 126, pp. 1958, 254; Webb v. French, 225 Ala. 617, 144 So. 818; Cooper v. Cooper, 216 Ala. 366, 113 So. 239; Thomason v. Dill, 34 Ala. 175; Bryant's Ex'r v. Boothe, 35 Ala. 269: 3 Cyc. 481, 489, 492; Devane v. Smith, 216 Ala. 177, 112 So. 837; Burgin v. Sugg, 210 Ala. 142, 97 So. 216; Edwards v. Davenport, 11 Ala. App. 423, 66 So. 878; Woodruff v. Rose, 43 Ala. 382; Rochelle v. Rochelle, 233 Ala. 317, 171 So. 897; First Nat. Bank v. Garrison, 235 Ala. 94, 177 So. 631; Steiner v. First Nat. Bank, 115 Ala. 379, 22 So. 30.
On the 30th day of December, 1937, the A. Paul Goodall Real Estate Insurance Company, as plaintiff, recovered a judgment in the circuit court of Jefferson county against the Jackson Securities Investment Company, a corporation, as garnishee, for the sum of $566.84. From this judgment the Jackson Securities Investment Company prayed and obtained an appeal from said judgment to this court, executing an appeal bond, as required by law, superseding the judgment, and a certificate of the appeal was, by the clerk, forwarded to this court and here filed on February 2, 1938.
The certificate of appeal, duly authenticated by the clerk of the court, discloses a final judgment in favor of the plaintiff as against the garnishee in the sum of $566.84. The certificate further shows that, on the 20th day of January, 1938, the garnishee filed its appeal bond to this court setting out the surety, and further that the attorneys of record for the plaintiff had received notice.
The appellee, in advance of a submission of the case on its merits, has filed and submitted here a motion to dismiss the appeal, assigning a number of grounds; the chief ground being that, in entering the judgment in the circuit court, that court performed a mere ministerial act, inasmuch as this judgment was entered in compliance with the mandate of this court; that, in appealing from such judgment, the appellant is but attempting to have here a second rehearing of the issues involved; that the attempted appeal in this cause is without authority of law, and is made for the purpose of delay and is frivolous, and same should be, by this court, discontinued and dismissed, setting out 41 separate grounds, all to the same purpose.
This case has once before been before this court (A. Paul Goodall Real Estate Ins. Co. v. Jackson Securities Investment Co., 177 So. 650), in which case this court reversed the judgment of the circuit court and remanded the cause for an order "not inconsistent with our holding"; which holding was to the effect that the plaintiff was entitled to recover as against the garnishee on its answer.
Ante, p. 21.
The appellee, in its motion to dismiss filed February 2, 1938, set out in extenso the judgment rendered by the circuit court in response to the mandate of this court, and contends that said judgment will not support an appeal.
As was said by Mr. Justice Knight in First Nat. Bank of Birmingham v. Garrison, Ala.Sup., 177 So. 631, 632: "It may well be conceded that appellant's real purpose is to obtain a second rehearing of the cause, but this fact will present no obstacle to such reconsideration if, under the law in this state, the appellant is entitled to prosecute the appeal."
The "law of the case" as it exists in some states has been abrogated to some extent by section 10287 of the Code of 1923, where it is declared that the Supreme Court, in deciding each case when there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion at that time, is law, without regard to such former ruling on the law by it.
The direction of this court to the circuit court that it enter a judgment in favor of the plaintiff against the garnishee, necessarily, involved the judicial ascertainment by the lower court of the amount of the judgment to be entered, which, when entered, became the final judgment in the case; and from which, by direct authority, an appeal lies to this court. Code 1923, § 8085.
If the mandate of this court in the original case had been specific in detail, leaving nothing of a judicial nature for the circuit court to ascertain, mandamus would have been the proper remedy, but in the instant case, details of the judgment complying with the mandate of the Court of Appeals were to be judicially ascertained, and when such judgment was entered the garnishee had a right, under the statute, to have the same reviewed by this court. First Nat. Bank of Birmingham v. Garrison, Ala.Sup., 177 So. 631;fn2 Code 1923, §§ 6078, 6133, 8085.
Supreme Court Rule 18 has no application to the case at bar, for the very good reason that there is no record of the case filed in this court, other than the certificate of the clerk that an appeal had been taken and a copy of an appeal bond. Rule 18 presupposes the filing of a copy of the record, that it may be inspected by the court, who will, upon such inspection, determine whether the appeal is taken for delay or whether it is frivolous. It appears, therefore, that a motion to affirm under Supreme Court Rule 18 is prematurely made.
The motion to dismiss the appeal is overruled.