Bethune v. Hale ( 1871 )

PETERS, J.

On tbe 30th day of April, in the year 1868, tbe appellee, who was plaintiff below, obtained judgment in the circuit court of Bullock county, against the appellants, who were defendants below, for the sum of thirteen hundred and ninety-seven dollars damages, besides costs. This recovery was by action of debt, founded on- a promissory note, alleged to be for Confederate money. On the 10th day of February, 1869, this judgment was set aside, and a new trial granted in said cause, by said circuit court, on the motion of said defendants. Afterwards, upon order nisi of Supreme court of this State, granted on petition for mandamus, the order for a new trial in said cause was set aside by said circuit court, and said judgment was restored and reinstated in full force and virtue.” This latter order was made in said circuit court on the 24th day of November, 1869, in conformity with the order of this court, granted as above said. From this latter order the appellants appeal to this court, and here assigns the following errors, viz:

1st, The court erred in rendering the judgment by default in the court below on April 30th, 1868.

2d, The court erred in rendering said judgment.

3d, The court erred in setting aside the order granting a new trial, and in declaring said order null and void.

4th, The court erred in rendering the judgment of November 24th, 1869.

5th, The court erred in its judgment of November 24th, 1869.

These assignments raise two questions: ' One on the validity of the judgment of April, 1868; and the other on the order of 1869. There is no appeal from the judgment of 1868, and as it was a judgment of a court of competent jurisdiction, and all the parties to the proceedings had proper and legal notice thereof, it can not be assailed except on appeal, or in chancery for fraud. Then, the question first above mentioned must be determined in favor of the validity of said judgment.

The second question must also be determined against the appellants. The court below, in making the order of November, 1869, from which this appeal is taken, but obeyed the command of this court. In this there was no error. This court is clothed with “ power to issue writs of injunction, mandamus, habeas corpus, quo warranto, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdiction.” — Const. Ala. art. 6, § 2. Under this authority the order of the circuit court now complained of was, in effect, an adjudication of this court. And if the court below did not transcend the command of this court, the order made in conformity with such command is necessarily final. Such is the order here.

Note by the Reporter. — At a subsequent day [of the term, the appellant applied for a rehearing. The application did not come into the Reporter’s hands. The following response was made thereto, by—

The judgment of the court below is, therefore, affirmed, at appellant’s cost.