Summary
In Ford v. Ford, supra [ 218 Ala. 15, 117 So. 463], an appeal was taken by respondent from an order or decree overruling her motion to set aside a final decree in favor of complainant in a suit for divorce. While the court held that the ruling on the motion would not support an appeal, it seems clear that such holding was based on the conclusion that the decree of divorce was not void on the face of the record.
Summary of this case from Wheeler v. BullingtonOpinion
6 Div. 75.
June 14, 1928.
Appeal from Circuit Court, Marion County; Ernest Lacy, Judge.
Ernest B. Fite, of Hamilton, and Still Hunter, of Jasper, for appellant.
The motion and this appeal are not governed by sections 7856-7860 of the Code, nor by the provisions of the law relating to appeals from applications for rehearing in equity. The decree on the motion is reviewable as any other decree, if taken in the time and manner provided by statute.
The trial court retains control of its judgments for a period of thirty days, within which, on motion of either party, or ex mero motu, the court could render such decree as would promote justice. The fact that complainant was dead did not deprive the court of jurisdiction.
J. J. Curtis and J. M. Pennington, both of Jasper, and Fred B. Jones, of Hamilton, for appellee.
The officer's return showed proper service. It was prima facie correct, and will support a judgment by default. Green v. Nu Grape Co., 19 Ala. App. 663, 100 So. 84; Morrow v. Norvell-Shapleigh, 165 Ala. 331, 51 So. 766. The death of a litigant revokes all agency of the attorney to appear for him. McDonald v. Womack, 214 Ala. 309, 107 So. 812; Streit v. Wilkerson, 186 Ala. 88, 65 So. 164, Ann. Cas. 1917E, 378. A judgment against a dead man is void. McDonald v. Womack, supra. An application for rehearing, whether named a motion or application for rehearing, is governed by Chancery Rule 81, and is purely discretionary. No appeal lies from a decree on such application. Ex parte Upchurch, 215 Ala. 610, 112 So. 202; Johnson v. Johnson, 214 Ala. 434, 111 So. 7; Hale v. Kinnaird, 200 Ala. 596, 76 So. 954; Chenault v. Milan, 205 Ala. 310, 87 So. 537; Cox v. Brown, 198 Ala. 638, 73 So. 964; Ex parte Gresham, 82 Ala. 359, 2 So. 486; Preddy v. Herren Sales Co., 215 Ala. 216, 110 So. 131.
George Ford filed his bill against his wife, Annie Ford, for divorce. Decree pro confesso upon personal service; evidence taken supporting the grounds of divorce charged in the bill; submission and decree of divorce followed in due course.
Three days after the decree of divorce was entered, George Ford was killed in a mine accident. Thereafter, within 30 days from the rendition of the decree of divorce, Annie Ford filed her motion to vacate the decree upon the ground that personal service of the summons was not had upon the date shown by the return, but at a later date, and that the decree pro confesso and final decree thereon were prematurely entered.
The motion was heard upon affidavits and testimony of witnesses taken ore tenus before the trial judge. The motion or application was denied, and movant appeals.
Brief of counsel appearing amicus curiæ directs our attention to the question of jurisdiction of this court on appeal. Is the order appealable?
A court of record has inherent power to vacate a decree or other record when void upon its face — this to preserve the dignity of its own records, prevent injustice, and abuse of process. This may be done by original motion at any time. No notice of same is required. An appeal lies from the ruling upon such motion on behalf of an aggrieved party. Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184.
But here the decree of divorce is not void on the face of the record. The decree pro confesso was duly entered upon an official return of due service. The application here is to falsify the return and proceedings dependent thereon.
Appellant seems to rely upon the power of the court over its decrees during term time, now fixed at 30 days after the date of rendition. Code, § 6670.
Rehearings in equity under the power thus invoked have long been regulated by Chancery Rule 81. Orders denying rehearings under this rule are not appealable. Preddy v. Herren Sales Co., 215 Ala. 216, 110 So. 131; Johnson v. Johnson, 215 Ala. 434, 111 So. 7; Ex parte Upchurch, 215 Ala. 610, 112 So. 202.
Appeals from rulings on motions for new trial are limited to cases at law. Code, § 6088.
As a bill of review under Chancery Rule 83, or a motion to set aside the decree under Code, § 7857, the proceeding was wanting in necessary parties.
The death of complainant revoked all authority of his attorney to receive notice or proceed with the cause without a personal representative. McDonald v. Womack, 214 Ala. 309, 107 So. 812.
The hearing was entirely ex parte with the admitted purpose of placing movant in position to claim damages or compensation as the surviving wife of a deceased employee.
In view of the rule of sound policy in favor of the verity of public records, and the circumstances disclosed on cross-examination and on inquiries by the trial judge, we would not be disposed to overturn his finding on the merits if the case was properly here, unless very clearly convinced of error in his finding. But we reach the conclusion that the ruling upon the motion will not support an appeal, and the same must be dismissed without decision upon the merits.
Appeal dismissed.
ANDERSON, C. J., and SAYRE AND GARDNER, JJ., concur.