Goodwater Warehouse Co. v. Street , 137 Ala. 621 ( 1902 )

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.