D. J. Enterprises, Inc.

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of AlabamaJan 24, 1974
292 Ala. 31 (Ala. 1974)
292 Ala. 31288 So. 2d 137

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SC 256.

November 29, 1973. Rehearing Denied January 24, 1974.

Appeal from the Circuit Court, Marshall County, Clark E. Johnson, Jr., J.

Harvey Elrod, Decatur, for appellant.

Remedial statutes should receive an enlightened and liberal construction. Railroad Commission of Alabama v. Ala. Great So. R.R. Co., 185 Ala. 354, 64 So. 13; Stewart v. Louisville Nashville R. R. Co., 83 Ala. 493, 4 So. 373; Ex parte Jim Walter Corp., 281 Ala. 670, 207 So.2d 648. Statutes and rules providing for relief against judgments are quintessentially remedial in nature and, therefore, must receive a liberal and enlightened construction. Hover v. MacKENZIE, 122 Cal.App.2d 852, 266 P.2d 60 (2d Dist.Div. 3, 1954); C. Meisel Music Co. v. Perl, 3 Ariz. App. 479, 415 P.2d 575; Tuzer v. Charles A. Krause Milling Co., 189 F.2d 242 (3 Cir. 1951); United States v. Gould, 5 Cir., 301 F.2d 353; Antonopoulos v. Eisner, 30 Ohio App.2d 187, 59 Ohio Op.2d 309, 284 N.E.2d 194 (Cuyahoga County, 1972); King v. Mitchell, 188 Or. 434, 214 P.2d 993, 16 A.L.R.2d 1128, reh. den. 188 Or. 434, 216 P.2d 269, 16 A.L.R.2d 1128; Patapoff v. Vollstedt's, Inc., 267 F.2d 863 (9 Cir. 1959); Beatty v. McClellan, 119 Ind. App. 385, 88 N.E.2d 56; Green v. Montana Drewing Co., 32 Mont. 102, 79 P. 693; Hobbs v. Martin Marietta Co., 257 Iowa 124, 131 N.W.2d 772. If this appeal be pending on the effective date of the Alabama Rules of Civil Procedure, such rules should govern in the disposition of this appeal. Rule 86, Ala. Rules Civ.Proc.; Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266, modif. 336 U.S. 942, 69 S.Ct. 398, 93 L.Ed. 1099 (1949); United States v. Backofen, 3 Cir., 176 F.2d 263; State v. Watson, 7 Ariz. App. 81, 436 P.2d 175. Under those rules, a party may obtain relief against a final judgment on grounds, among others, of mistake, inadvertence, surprise or excusable neglect or for any other reason justifying relief from the operation of the judgment. Rule 60(b), Ala. Rules Civ.Proc.

T. J. Carnes, Albertville, for appellee.

The law exacts diligence from suitors, Traub v. Fabian, 160 Ala. 210, 49 So. 240. When a party conducts his suit in court through an attorney he is bound by both the attorney's viligence and negligence, ex parte North, 49 Ala. 385. A client is bound by all the acts of his attorney in the course of legal proceedings, in the absence of fraud or collusion, and he cannot plead the negligence of his attorney as a ground for relief. Albert Haas Lumber Co. v. Gibson, 172 Ala. 111, 54 So. 994. The inattention of counsel for the defendant to a legal proceeding cannot be visited upon the plaintiff. Wheeler v. Morgan, 51 Ala. 573.

This appeal is from an order denying appellant-defendant's petition for a rehearing in an action at law under Tit. 7, § 279, Code 1940.

Plaintiff sued defendant for rent, and caused a writ of garnishment to issue to Aetna Insurance Company because the rented building had been destroyed by fire and the garnishee was supposed to be indebted to the defendant. The complaint and the writ of garnishment were filed on June 28, 1971.

On July 29, defendant filed a motion to quash service because the summons and complaint had been served, not on him, but on his wife. An amended complaint and the original complaint were properly served on defendant December 7, 1971. Some three days later, defendant delivered the properly served papers to the office of his attorneys.

On January 26, 1972, plaintiff took a judgment by default, and obtained a judgment for $13,300.00.

The petition for a rehearing under Tit. 7, § 279, was presented to the circuit judge on May 26, 1972. Section 279 provides:

"When a party has been prevented from making his defense by surprise, accident, mistake, or fraud, without fault on his part, he may, in like manner, apply for a rehearing at any time within four months from the rendition of the judgment."

The petition, evidence and arguments were heard on December 1, 1972 and the trial court, in a written opinion, denied the petition, citing Johnson v. Robertson, 284 Ala. 566, 226 So.2d 627.

Appellant concedes in brief that the cases cited to overturn the holding of the trial court are not Alabama cases. Our cases support the judgment of the trial court.

The main thrust of appellant's argument is that this court should not apply Tit. 7, § 279, but should apply Rule 60(b), ARCP. This rule incorporates most of § 279 but some part of the wording is different. We cannot agree.

The judgment on the petition for rehearing was entered on December 1, 1972. The appeal to this court was taken on January 2, 1973. The transcript of the record was filed in this court on April 26, 1973. Appellant's briefs were filed on June 12 and appellee's briefs were filed on June 26, 1973.

Rule 86, ARCP, makes the effective date of the Alabama Rules of Civil Procedure effective on July 3, 1973 (six months from their adoption by this court on January 3, 1973).

The ARCP were designed to govern the procedure in trial courts. They were not in existence when the trial court decided this case or when the Circuit Court of Marshall County lost jurisdiction of the cause because of the appeal to this court. It would be unjust to reverse a trial court because he did not apply a rule or procedure which was not even in existence when the case was decided. The law applicable at that time was Tit. 7, § 279, and the trial court applied it in conformity with the decisions of this court where that statute has been construed and applied.

This court has held that no statute has any force until it becomes the law of the land, and that is on the day fixed for it to go into effect. Lee v. City of Decatur, 233 Ala. 411, 172 So. 284. The same rule would apply to a rule of court procedure.