Opinion
6 Div. 698.
November 19, 1940. Rehearing Denied December 17, 1940.
Original petition of C. A. Whitehead for mandamus to require J. Fritz Thompson, as Presiding Judge of the Tenth Judicial Circuit, County of Jefferson, to dismiss the cause of H. S. Whisler, plaintiff, v. C. A. Whitehead, defendant, pending on the docket of said court.
Mandamus awarded.
Certiorari denied by Supreme Court in Ex parte Whisler, 6 Div. 804, 199 So. 879. In response to rule nisi the respondent filed an answer in pertinent part as follows:
"1. In chronological order, the following proceedings and dates thereof were had in this cause:
"January 9, 1929. Summons and complaint issued.
"January 12, 1929. Summons and complaint executed by Sheriff on Defendant L. A. Daniel.
"January 22, 1929. Summons and complaint issued to C. A. Whitehead Acceptance of Service for C. A. Whitehead by W. H. McGowan, attorney, by Ingram Beasley.
"February 18, 1929. Judgment by default for plaintiff and against both Defendants for the sum of $920.00 with costs.
"March 20, 1929. Motion of L. A. Daniel to set aside judgment by default.
"March 20, 1929. Writ of Fieri facias issued by the Clerk to the Sheriff commanding he collect the judgment from both defendants.
"March 30, 1929. Motion of L. A. Daniel granted and judgment set aside.
"April 3, 1929. Judgment by default against both defendants for the sum of $580.00 and costs of court.
"April 5, 1929. Writ of Fieri facias issued on March 20, 1929, returned by order of Court.
"April 18, 1929. Writ of fieri facias issued from the Clerk to the Sheriff to collect said judgment, same being requested by plaintiff as appears on court docket.
"June 8, 1929. Writ of fieri facias returned by the Sheriff marked 'No property found in my County'.
"September 4, 1929. An additional Writ or alias Writ of Fieri facias issued against both defendants Daniel and Whitehead, by the Clerk to the Sheriff ordering the collection of said judgment.
"October 9, 1929. Said Alias Writ of Fieri facias issued by the Clerk to the Sheriff on September 4, 1929, returned by the Sheriff to the Clerk and marked 'No property found in my County'.
"Thereupon a Writ of garnishment was [Dec. 15, 1938] issued on said judgment and the following proceedings were had:
"December 22, 1938. The defendant C. A. Whitehead filed a motion.
"Jan. 4, 1939. Plaintiff filed Plea to jurisdiction [of defendant's motion].
"January 4, 1939. The Judgment was set aside as to C. A. Whitehead, by J. Fritz Thompson as presiding Judge, who ruled that the acceptance of service by W. H. McGowan attorney for C. A. Whitehead was inadequate.
"January 13, 1939. Plaintiff issued alias Summons and complaint against C. A. Whitehead.
"January 14, 1939. Alias Summons and complaint was executed by the Sheriff of Jefferson County, Alabama. serving a copy of same upon the said C. A. Whitehead in person.
"February 14, 1939. C. A. Whitehead filed Plea in Abatement.
"September 18, 1939. C.A. Whitehead filed Motion to continue.
"October 17, 1939. Plaintiff filed Demurrer to C. A. Whitehead's Plea in Abatement.
"March 29, 1940. Plaintiff demurrer to C. A. Whitehead's Plea in Abatement was sustained by the court.
"April 5, 1940. Defendant C. A. Whitehead filed a motion to strike or dismiss the cause.
"May 2, 1940. Defendant C. A. Whitehead's Motion to Strike or dismiss the cause was denied and the said C. A. Whitehead, Movant, excepted to the Court's ruling."
Pritchett Giles, of Birmingham, for petitioner.
A suit having been duly commenced by the filing of a summons and complaint and issuance of process, cannot thereafter be permitted to remain indefinitely within the control of the plaintiff alone. The suit should be prosecuted in good faith or dismissed. The suit in this case having remained on the docket for ten years, without valid service upon or notice to defendant, has been discontinued or is ripe for dismissal for want of prosecution. Ex parte Holton, 69 Ala. 164; Hodges v. Wise, 16 Ala. 509; Daly v. Chicago, 295 Ill. 276, 129 N.E. 139; Bowen v. Wilson, 56 App.D.C. 375, 15 F.2d 733; Bernays v. Frederic Leyland Co., D.C., 228 F. 913; McGuire v. Montvale Lumber Co., 190 N.C. 806, 131 S.E. 274; Dunaway v. Lord, 114 W. Va. 671, 173 S.E. 568; Weaver v. Woodling, 220 Mo. App. 970, 272 S.W. 373; 20 Ency.Pl. Pr. 1179. Mandamus is the proper remedy to compel dismissal of a cause. First Nat. Bank v. Cheney, 120 Ala. 117, 23 So. 733; DeMoville v. Merchants F. Bank, 237 Ala. 347, 186 So. 704.
Jim Gibson, of Birmingham, for respondent.
The courts of Alabama at an early date relaxed the rule of the common law so as to hold that a discontinuance can only be predicted of some positive act of the actor in the proceeding, or in consequence of the actor's failure to perform some precedent duty enjoined upon him by law. No cause for dismissal is made to appear in this case. Sales Method Co. v. City Meat Market, 222 Ala. 12, 130 So. 536; Roszell v. State, 19 Ala. App. 462, 98 So. 35; Ex parte Doak, 188 Ala. 406, 66 So. 64; Mobile v. Board of Revenue, 219 Ala. 60, 121 So. 49; Ex parte Humes, 130 Ala. 201, 30 So. 732; Ex parte Holton, 69 Ala. 164.
Application to this court for mandamus directed to the Presiding Judge of the Tenth Judicial Circuit to require the dismissal of a cause (Whisler v. Whitehead) now on the docket of the Circuit Court of Jefferson County. The petitioner's right to the writ is dependent upon determination of the question of whether there has been a discontinuance of said cause. If there has been, the writ must be awarded, directing the dismissal of same. Ex Parte Holton; 69 Ala. 164; First National Bank v. Cheney, 120 Ala. 117, 23 So. 733; De Moville v. Merchants Farmers Bank, 237 Ala. 347, 186 So. 704.
(The Reporter will set out, briefly, in chronological order, the progress of the cause in said court, with the dates of the proceedings, as shown by the transcript.)
The learned Presiding Judge of said Circuit quotes the following as authority for his refusal to grant the defendant's motion to dismiss the case:
" 'The Courts of Alabama at an early date relaxed the Rule of the Common Law so as to hold that a discontinuance can only be predicated of some positive act of the actor in the drama or in consequence of the actor's failure to perform some precedent duty enjoined upon him by law.'
"Sales Method Co. v. City Meat Market, 222 Ala. 12, 130 So. 536; Roszell v. State, 19 Ala. App. 462, 98 So. 35; Ex parte Doak, 188 Ala. 406, 66 So. 64; Ex parte Holton, 69 Ala. 164; Ex parte Humes, 130 Ala. 201, 30 So. 732; City of Mobile v. Board of Revenue, 219 Ala. 60, 121 So. 49."
Although decision of the question has not been without difficulty, it is our opinion that the plaintiff, (Whisler), by his own act, produced a discontinuance of his case. True, he may not have failed "to perform some precedent duty" required of him by law, but, clearly, he, by his own positive act, caused the removal of the case from the docket of the Circuit Court by taking an abortive default judgment against the defendant (Whitehead) on a summons and complaint which had never been served on said defendant, after which the cause was allowed to repose quiescently for more than nine years. It is difficult to conceive a stronger case of discontinuance. Suit was filed and summons and complaint issued, January 9, 1929. There was no proper execution of the summons on the defendant as required by the statute. Code 1923, Sec. 9419. Despite this, however, the plaintiff moved for a judgment by default against the defendant, which was accordingly entered on April 3, 1929. Aside from the issuance and return ("No Property Found") of two writs of fieri facias in 1929, the case, having been thus removed from the docket of the court, lay dormant until December 15, 1938, when a writ of garnishment on said judgment was issued. Thereafter, on January 4, 1939, upon motion of defendant, the court very properly and promptly entered an order vacating the said judgment. 33 C.J., p. 1074, Sec. 35(2); idem, p. 1082, Sec. 44(b); Freeman on Judgments, Vol. 1, Sec. 196, p. 385; Sec. 198, p. 387; Sec. 219(a), p. 431; Buchanan v. Thomason, 70 Ala. 401, 402, Tennessee C. I. R. Co. v. Wise, 159 Ala. 632, 636, 49 So. 253; Cook v. Phonoharp Co., 157 Ala. 501, 502, 47 So. 1035; Louisville N. R. Co. v. Tally, 203 Ala. 370, 372, 83 So. 114; Ex parte Luther, 232 Ala. 518, 520, 168 So. 596.
According to the defendant, he first became aware of the suit and the claim when he received notice of the garnishment in December of 1938; that during said period he was a resident of the county, was easily available for service of process and his whereabouts known to the plaintiff; that in the interim he had sought to be acquitted of all debts by proceedings of bankruptcy, but, being ignorant of this claim or suit, did not schedule it; that although he had a valid defense thereto, the witnesses were unascertainable and if procurable, their recollection of the matter necessarily would have become dim through the years, etc.
It thus appears that, by his own positive and voluntary act in taking the ineffectual and invalid judgment in 1929, the plaintiff removed his case from the docket of the court, and thereby caused a chasm in the proceedings or a discontinuance for many years. Such lack of diligence on the part of the plaintiff in the transaction of a law suit, always a serious matter, should not be countenanced and the trial court, in our view, erred in permitting the plaintiff, against the timely motion of the defendant, to proceed further with the suit.
It was held in Ex parte Holton, supra, 69 Ala. page 167, that if the cause is kept off the docket by the act of the plaintiff this will amount to a discontinuance; and in Forrester v. Forrester, 39 Ala. 320, 323, that a discontinuance would occur if the cause had, by the active agency of the petitioner or her counsel, been taken from the docket. Pertinent also is the following in Drinkard v. State, 20 Ala. 9: "But where the solicitor, by leave of the court, actually interferes with its pendency on the docket, and its progress, and takes it off the docket, withdraws it, and files it, and keeps it off the docket for more than a term, such active and unlawful interference amounts in law to a discontinuance or abandonment of the prosecution."
The rule was also similarly announced by our court in Roszell v. State, 19 Ala. App. 462, 98 So. 35.
So it appears here that the plaintiff by his own act, in taking the obviously improper judgment, interfered with the pendency of the case, caused its removal from the docket and during the many succeeding years the cause lay dormant. We do not think that he should now be allowed to "wake up" his case from its aged sleep and thereby subvert the salutary policy of the law, which by statute and judicial pronouncement has denounced and denied the prosecution or enforcement of stale demands. To hold otherwise would be to permit the plaintiff to profit by his own neglect and delay indefinitely the proper prosecution of his suit and thus postpone forever, if he so chose, the running of the statute of limitations. It devolves upon one who brings an action to prosecute it with diligence and failing to do so, he, not his adversary, should be the sufferer. McGuire v. Montvale Lumber Co., 190 N.C. 806, 131 S.E. 274; Bernays v. Frederic Leyland Co., D.C. Mass., 228 F. 913. The incalculable disadvantage to which the defendant would be subjected is manifest, for certainly the knowledge of those witnesses, who might still be available, as to the issues in dispute, must have become less definite by the long delay, which the defendant in no way induced and to which he in no way contributed.
The courts of other states have likewise written in strong denunciation of similar or analogous situations as that presented here. Interesting and informative discussion of the subject may be found in the following authorities: Parsons v. Hill, 15 App.D.C. 532; Bowen v. Wilson, 56 App.D.C. 375, 15 F.2d 733; Bernays v. Frederic Leyland Co., D.C., 228 F. 913; Johnston v. Standard Mining Co., 148 U.S. 360, 13 S.Ct. 585, 37 L.Ed. 480; McGuire v. Montvale Lumber Co., 190 N.C. 806, 131 S.E. 274; Daly v. City of Chicago, 295 Ill. 276, 129 N.E. 139; Dunaway v. Lord, 114 W. Va. 671, 173 S.E. 568.
On reason and authority both, therefore, do we hold that there has been a discontinuance of the case. It is therefore the order of this court that the writ of mandamus issue to the Presiding Judge of the Tenth Judicial Circuit directing the dismissal of the said cause.
Writ granted.