
    Goodwater Warehouse Co. v. Street.
    
      Action against W'archonsanav.
    
    1. Jurisdiction of circuit court to render judgment for failure to properly answer interrogatories; court of limited jurisdiction. A circuit court, in the exercise of the jurisdiction conferred hy statute, in enforcing the remedy for failure to answer interrogatories propounded, or in answering them evasively or not fully, (Code, §§ 1850-1858), is a court of limited jurisdiction.
    2. Court of limited jurisdiction; jurisdictional fads must affirmatively appear in record; sufficiency of judgment.■ — While a court is in the exercise of special or limited jurisdiction, the existence of jurisdictional facts can not be inferred from the exercise of jurisdiction, but such facts must affirmatively appear from the record; and this requirement is not satisfied by the recital in the judgment entry from which the inference may be drawn, or on which an argument may be predicated, that the court ascertained -the existence of the jurisdictional facts.
    Appeal from the Circuit Court: of Coosa.
    Tried before the Hon. A. H. Alston.
    This was a suit in which the appellee, J. C. Street, the plaintiff in the court below, sought to recover damages from the defendants for the' destruction, loss, damage and conversion of nine hales of cotton stored by the plaintiffs with the defendants, as warehousemen. Service was had. upon both of the defendants, and they both appeared generally and by counsel, and after demurring to plaintiff’s complaint filed pleas to each count thereof which set up, among other things, that at the time the plaintiff’s cotton was lost or injured neither of the defendants had charge of or had any interest in the warehouse, but that the same had been rented out to other parties ; and setting up other matters which naturally rested, largely Avithin the knowledge of the defendants alone. Thereupon the plaintiff filed interrogatories to the defendantsi under section 1850 of the Code of Alabama of 1896, Avhich Avere duly and properly served upon them, and to these interrogatories the defendants filed Avhat purported to be ansAvers, but the same were not verified as required by section 1852, nor Avere'they full answers to- the interrogatories propounded, and were in many instances evasive. Thereupon, the plaintiff, under section 1856 of the Code of 1896, moved for a judgment by default against 'the defendants. The court, in response to this motion, rendered a judgment in favor of the plaintiff. This judgment was in Avords and figures as follows: “Plaintiff by permission of the court filed a motion praying the court to enter judgment by default, against both of the defendants, because of their failure to answer properly interrogatories propounded to the adverse party, under the statute as fully appears, from said motion on. file. And the court, after argument of counsel sustains said motion, and ordered, decreed and adjudged that judgment bv default be given in favor of the plaintiff against the defendants for the amount of plaintiff’s claims; thereupon the plaintiff asked for a Avrit of inquiry to- ascertain his damages,” etc. There then folloAvs the recital in the judgment of the empanneiling of the jury, before Avhom the evidence was introduced, the return, of the verdict in favor of the plaintiff and a judgment in favor of the plaintiff upon said verdict. From this judgment the defendants appeal and assign the rendition thereof as error.
    Whitson & Graham, for appellants.
    The right of a party to a civil suit- at law to propound interrogatories to the other or adverse party — to a discovery at law Avas unknown to the common law, and exists, only by statute, and the power and jurisdiction of the court to render a judgment by default against the party to whom such interrogatories are filed, for failure to answer the same, or when the answers are not full or are evasive, is purely statutory. — Code, §§ 1850, 1856.
    When a court exercises a special statutory and extraordinary power, it stands upon the sarnie grounds, and is governed by the same rules as courts of limited, ancl inferior jurisdiction. The rule then is, that nothing shall be intended to be within the jurisdiction but that which is expressly so alleged,” (italics ours). — Wilmer-ding v. Corbin Banking Co., 126 Ala. 278; Haywood v. Collins, 60 111. 328; Pullman Palace Car Co. v. Harrison, 122 Ala. 157-8; Gunn, v. Ho-well, 27 Ala. 663, 675; State v. Mobile & Girard R. R., 108 Ala. 31; Whorton v. Moragne, 62 Ala. 204.
    Nothing is presumed to be within the. jurisdiction of the court- of limited jurisdiction but that which is so expressly alleged and affirmatively appears from the record. — Commissioners’ Court of Talladega, v. Thompson, 18 Ala. 694-697; Robertson v. Bradford, 70 Ala. 387; Pettus v. McGlanahan, 52 Ala. 55; Wells, Admr. r. American Mtg. Go., 123 Ala. 418; Whorton v. Moragne, 62 Ala. 202; Horton v. Elliott, 90 Ala. 480-483; also authorities supra.
    
    To uphold the judgment of a, court, of limited jurisdiction in the exercise of special and statutory powers, its records must affirmatively show the existence of the facts upon which its authority depends, and the existence of such jurisdictional fact is not, presumed. — Joiner v. 'Winston, 68 Ala.. 130; and authorities last cited supra.
    
    Knox, Lhxoisi & Burr, contra.
    
    Neither the motions of the plaintiff 'nor the interrogatories propounded nor the answers to ‘the interrogatories are proper matters to be incorporated in the record, but are such matters as could only be brought to the attention of this court by reserving exceptions thereto and incorporating them Avith the exceptions in a bill of exceptions. This has not been done in this case, and such portions of the record should not be considered by tins court in determining this case. 3 Eney. PL & Pr. 392; 2 Eney. Pl. & Pr. 274; Tuscaloosa. Wharf i'o. v. Mayor and Aldermen of Tuscaloosa, 38 Ala. 516. Motions of various kinds made during the progress oí the cause and the rulings of the court granting or denying .them must, in order to be reviewed on appeal, be taken up on a bill of exceptions. — Authorities supra; Wiggins v. WitherUigton, 96 Ala. 535; Warring v. Gilbert & Bro., 25 Ala. 295; lÁenhauff v. Tuscaloosa Sale Go., 99 Ala. 619.'
    The; statute provides that when the party fails to answer for 60 days after service, or his answers are not full or are evasive, the; court may either attach the party or continue the cause or direct a judgment by default to be entered, and it is discretionary with the court which one of 'these courses it should pursue, and the exercise of such discretion is not reviewable. — Poole v. Harrison, 18 Ala. 518; Goodicin v. Harrison, 6 Ala. 438; M. & O. H. It. Go. v. Seales, .100 Ala. 376.
    The motion of the appellee for a judgment by default, (he ruling of the court thereon, the interrogatories and answers upon, which the same Avere based, not being incorporated in a bill of exceptions and not being a proper part of the1 record, the court has before it only the judgment, Avhich is clearly sufficient, even if the motion is not a part, of the record, for in. that event the recitations as to interrogatories Avill be rejected altogether and it Avill be considered as a judgment by default Avith parties not present to sustain their pleas. — Blyton Land Go. v. Morgan, 88 Ala. 434,• Lehman v. Hudmon, 85 Ala. 136; Hudson v. Wood, 102 Ala. 433; Schwarts v. Opponhcimer, 90 Ala. 462.
   TYSON, J.

This appeal is prosecuted from a judgment by default rendered against the defendants under section 1856 'of the Code. .That section i,s a part of the statutory system making provision for either party to a civil suit at laAA', to have a discovery, as in courts of equity, upon interrogatories propounded to the adverse party, etc. — Code, §§ 1850, et seq. It reads as follows: “If answer to the interrogatories are not filed within 60 days after the service of a copy of the interrogatories, or when the answers are not full, or are evasive, the court may either attach the party and cause him to answer fully in open court, or continue the cause until full answers are made, or direct a non-suit or judgment hv do fault to he entered.”

The right provided by these statutes and the reme .y for the enforcement of their disobedience, as prov led in the section quoted above, were unknown to the common law and in derogation thereof and would have no existence except for the statutes. And, notwithstanding the circuit court is a court of genera] jurisdiction, yet, when it undertakes the exercise of the jurisdiction conferred by these statues, it becomes quo ad hoc; a court of inferior or limited jurisdiction. — Gunn v. Howell, 27 Ala. 663; State v. M. & G. R. R. Co., 108 Ala. 29.

There is a clear distinction between the nature of the general jurisdiction and that of a special, limited jurisdiction conferred by statute upon the same court in respect of what the record must show' in order to uphold the exercise of jurisdiction. '

When the matter for determination is of such nature as invokes the exercise of the general jurisdiction of the court, tire existence of the jurisdictional facts is inferred from the mere exercise- of jurisdiction, unless the record discloses the contrary. On the other hand, where it is of such nature as the court exercises special, limited jurisdiction, the existence of jurisdictional facts is not inferred from the exercise of jurisdiction, hut they'must affirmatively appear from the record. — Commissioners v. Thompson, 18 Ala. 694; Pettus v. McClannahan, 52 Ala. 55; Wharton v. Moragne, 62 Ala. 202; Robertson v. Bradford, 70 Ala. 387; Horton v. Elliott, 90 Ala. 480; 483; Pullman Palace Car Co. v. Harrison, 122 Ala. 149, 158; Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 278. Nor is the requirement that the existence of jurisdictional facts must affirmatively appear from the record satisfied by a recital in the judgment entry from which an inference may he drawn or upon -which an argument may'he predicated, that the court- ascertained the existence of those facts. — Joiner v. Winston, 68 Ala. 129; McCravey v. Remson, 19 Ala. 430.

Applying these principles to the judgment, whhh is the only part of the record in this case to which wo. are authorized to look, there can he little doubt that it wholly fail® to show that tire court ascertained the existence of the necessary jurisdictional facts to suppor' the judgment rendered.

An analogous, class of cases to this-, involving summary proceedings instituted in the circuit- court, may be cited to sustain the correctness of this conclusion, and also as sustaining appellee’s contention that the interroga1 oríes, the service, thereof, the answers thereto and the motion for the judgment are no! part of the record of the c urt below, and, although copied in the record, can not be 'considered here. — Connoly v. Ala. & T. R. R. Co., 29 Ala. 373; Worswick v. Brooks, 70 Ala. 412; Chandler v. Reid, 114 Ala. 390; Chandler v. Francis Vandegrift Shoe Co., 94 Ala. 233. See also Hodges v. Ashurst, 2 Ala. 301; Bessell v. Carrillo & Co., 7 Ala. 503; Tuscaloosa, etc. Co. v. Mayor and Aldermen, 38 Ala. 516. But if these matters! liad been made a part of the record in this court .by bill of exceptions-, we apprehend the result would be the same. They would still not be a matter of rreord of the court below. And, therefore, could not be looked to for the purpose of aiding the. recitals of the judgment- entry.

But it is insisted by appellee’s counsel that- if the. judgment was- erroneous in the particulars pointed out above, that it can and should be sustained as a general judgment by default. In support of this contention a line of cases is cited in which formal judgments by default or nil elicit were sustained by this court, although the record showed that the defendant had pleas on file, as here. An, examination of those cases, however, shows that the judgments rendered were sustained upon the theory that the defendant had abandoned his pleas; there being recitals in the judgment entries showing default of appearance on his part, or his declination to say anything in bar or preclusion of the suit. The judumerd «■*'- try in this case contains- no such recital. There is not a line in it upon which can be predicated the conclusion that the judgment by default was rendered against the defendants on account of default in appearing or their declination to offer evidence in support of their pleas. On the contrary, it is fairly dedncible from its recitals that, they were prevented from making their defense, by the enforcement of the summary remedy conferred by the statute.

Reversed and remanded.

Haralson, J., not sitting.  