
    (97 South. 680)
    (6 Div. 308.)
    Ex parte STATE ex rel. HARLE HAAS CO.
    (Court of Appeals of Alabama.
    July 10, 1923.
    Rehearing Denied Oct. 16, 1923.)
    Judgment <&wkey;d58 — Default judgment set aside without affidavit of merit, when demurrer filed in time.
    Where a demurrer had been filed within thirty days after service, the time allowed a defendant by Practice Act to appear and demur or plead, it was the duty of the presiding judge under that statute to set aside a default judgment without the statutory affidavit of merit, since the entry of such judgment was reversible error.
    <®=3For other cases see same topic and K.Er-In UMBER in all Key-Numbered Digests and Indexes
    Original petition by the State of Alabama,on the relation of the Harle Haas Company,for mandamus to Hon. Roger Snyder, as Judge of the Circuit Court, Jefferson County.
    Writ/denied.
    Thompson & Thompson,, of Birmingham, for petitioner./
    The court was without jurisdiction to entertain or set asidle the judgment by default,, without an affidavit of merit having been filed and accompanying the motion to set aside said judgment by default, and the action of the court in assuming jurisdiction in the instant case is absolutely void. Ex parte Payne, 130 Ala. 189, 29 South. 622; Ex parte John F. Byers Mch. Co., 18 Ala. App. 78, 89 South. 88; Ex parte Doak, 188 Ala. 406-, 66 South. 64. The remedy of the aggrieved party under circumstances outlined is by mandamus.
    Coleman, Coleman, Spain & Stewart, of Birmingham, for respondent.
    Within 30 days from the rendition of the judgment in the term time, whether by default or nil dicit, the judgment is within the control of the court, and it has the discretionary power of setting 'such judgment aside, with or without affidavits, and such action is not revisable. Ex parte John Byers, Machine Co., 18 Ala. App. 78, 89 South. 88; Id., 206 ‘ Al’a. 65, 89 South. 89; Ex parte Parker, 172 Ala. 138, 54 South. 572; Wilkins v. Windham, 197 Ala. 510, 73 South. 29; Tal-ladega Merc. Co. v. McDonald, 97 Ala. 508, 12 South..34; Sparks v. Reeves, 165 Ala. 358, 51 South. 574; Ex parte Doak, 188 Ala.' 415, 66 South. 64.
   S5AMFORD, J.'

Petitioner, as plaintiff, on September 9, 1922; filed bis suit in assumpsit, in tbe circuit .court of Jefferson county, against S. A. Merriam, claiming $737.92 on tbe common counts, and service was bad and return made on September 25, 1922. Said cause was set for bearing for February 14, 1Q23, before Hon. Roger Snyder, one of the judges of tbe Tenth judicial circuit, and on that day, upon motion and application of plaintiff, judgment by default was entered and rendered against defendant for tbe amount sued for and interest. On February 16, 1922, the defendant, through bis attorney, filed a motion in said court to set aside said judgment by default, assigning as one of the grounds of tbe motion:

“This defendant had filed with the clerk of the circuit court of Jefferson county, its demurrers in said cause, within thirty days from the date of the service of the summons and complaint on defendant, and this defendant was not in default in said cause.”

Of this motion plaintiff had notice. Tbe motion was by proper entries and orders continued to tbe 3d day of March, 1923. On that day tbe judge presiding (this respondent) entered an order granting tbe motion, setting aside the judgment by default and reinstating tbe case to tbe trial docket. This petition seeks to compel tbe respondent to set aside tbe last-named order.

• The Practice Act, governing proceedings in tbe circuit court of Jefferson county (Acts 1888-89, p. 797) contains these pertinent provisions:

“And in all cases, whether commenced by summons and complaint, attachment, or otherwise, any defendant failing for more than thirty days after service has been perfected upon him to appear and demur or plead, shall be held to be in default, and, at 'any time thereafter, judgment by default, on motion of the plaintiff, may be rendered against him; plo-vided, however, that the - court may, for good cause shown, allow such judgment so obtained by default to be set aside, and demurrer or pleas to be filed, on such terms as the court' may think just; but bo application- to set aside such judgment, unless it be for some reversible error committed in the rendition thereof, shall be entertained by the court, unless accompanied by an affidavit made by the defendant or his agent or attorney to the effect that, in the belief of the affiant, the defendant has a lawful defense to such suit. * * * That final judgments rendered in said court shall, after expiration of thirty dayss from their rendition, be taken and deemed as completely beyond'the control of the court, as if the term of said court at which said judgments are rendered had ended at the end of said thirty days; provided, however, that nothing herein contained shall prevent parties from applying for new trials or rehearings, * * * . when so made, or shall prevent parties from applying to said .court for rehearings under the statute author-ising applications for rehearings in the circuit court, or shall prevent the court from retrying any cause'under section 2871 of the Code, of Alabama, or shall prevent the court from the exercise of any .power or jurisdiction conferred upon the circuit court touching -final judgments.”

This part of tbe act bas several times been the subject of construction by tbe Supreme Court, and this court. Ex parte Doak, 188 Ala. 406, 66 South. 64; Wilkins v. Windham, 197 Ala. 510, 73 South. 29; Ex parte Parker, 172 Ala. 136, 54 South. 572; Ex parte Byers Mach. Co., 18 Ala. App. 78, 29 South. 88; Ex parte Payne, 130 Ala. 189, 29 South. 622. In all of these cases it is either heid or recognized that petitioner bas pursued tbe proper remedy, if be is entitled to tbe relief be seeks.

The respondent, in his amended answer, which is properly verified, says, it was ascertained and'determined by tbe court that:

. “The defendant in the cause had, within thirty days fjjom the service of the summons and complaint, filed demurrers to said summons and complaint.”

Petitioner insists however that the motion to set aside tbe judgment cannot be considered by the court, in the absence of an accompanying affidavit of merit, as is provided for by tbe Practice Act, suprh. Acting within the thirty days allowed by law, during which the judgments rendered are in the breast of tbe court, except as otherwise limited by statute, the court in' this case could certainly have acted on its discretionary powers, unless tbe letter of tbe statute takes away its jurisdiction.

To determine this we must look to tbe act itself to see just what powers are taken away from the trial court, by a statutory limitation of its discretionary powers necessary in tbe due and wise administration of justice. When a judgment by default bas been obtained in accordance with tbe terms of tbe Practice- Act, supra, a motion to set aside must be accompanied by an affidavit of merit, as is nominated in tbe statute. Ex parte Byers Mach. Co., supra; Ex parte Payne, supra. But, in giving to tbe plaintiff this statutory right, we must be careful to see that the rights of the defendant are as carefully guarded, and to that end the discretionary power of tbe trial court over its judgments will be preserved to tbe full limit ,as curtailed by the statute. Before the i>lain-tiff was entitled to a judgment by default, tbe' defendant must have failed, for more than thirty days after service had been perfected upon him, to appear and demur or plead. If be did demur or plead in tbe time allowed bylaw, be was not in default, and no • default judgment could be rendered .against him. On tbe bearing of the motion, as is shown by the amended answer of respondent, it was ascertained that demurrer’ had been filed in time, and therefore it became tbe duty of tbe presiding judge to grant the motion setting; aside the default judgment, without an accompanying affidavit of merit. The action of the court in entering the judgment by.default constituted reversible error. Ex parte Haynes, 140 Ala. 196, 37 South. 286; Ex parte Byers Mach. Co., supra.

The petition for writ of mandamus is denied.  