Mayor of Columbiana v. Kelley , 172 Ala. 336 ( 1911 )

DOWDELL, C. J.

This appeal is prosecuted from a judgment of the court dismissing appellant’s petition. The petition was for a supersedeas of an execution issued on a judgment alleged in the petition to be void. The petition sets forth the proceedings in the circuit court wherein the judgment was rendered and on which the execution was issued that is sought to be superseded.

It appears from the petition to which a demurrer was sustained, and the facts averred are taken as confessed on demurrer, that the appellees have sued the appellant, the mayor and council of Columbiana, a municipal corporation, jointly with the dispensary commissioners of Columbiana., Ala., another municipal corporation, in assumpsit, on an implied contract. The complaint contained only the common counts, viz., for money due by account, for goods, wares, merchandise, etc., on an account stated, for money loaned, and for money paid on defendant’s request. On this complaint a judgment by default was rendered against the defendants, and execution issued thereon against the appellant, the mayor and council of Columbiana. The complaint states a cause of action jointly against the defendants, and a recovery can be had only on a joint liability.

Proof of a contract different from that alleged in the complaint would constitute a fatal variance. This is elementary law.

The mayor and council of Columbiana is a municipal corporation created by an act of the Legislature.— Acts 1894-95', p. 1102. Its powers to contract are conferred and limited by its charter. The dispensary com'missioners of Columbiana, Ala., is also a municipal corporation created by an act of the Legislature. — Local Acts 1900-01, pp. 1128-1133. Its powers to contract are defined and limited by its charter. The courts take judicial notice of the charter powers of such corporations.

In the charter powers of these two corporations there is to be found no power or authority for a joint contractual undertaking by the two. Indeed, under the charter powers, from a legal standpoint, a joint undertaking, with a joint liability, such as is here declared on, is inconceivable. This being true, the logical, the only, conclusion is the complaint fails to state a cause of action. And where the complaint fails to state a cause of action there is nothing upon which to rest a judgment, and a judgment by default in such a, case is of consequence invalid. — St. Clair County v. Smith, 112 Ala. 347, 20 South. 384; L. & N. R. R. Co. v. Williams, 113 Ala. 405, 21 South. 938; Goodwin v. Forman, 114 Ala. 489, 21 South. 946; Linam v. Jones, 134 Ala. 579, 33 South. 343.

It is not only within the power, but it is the duty, of the courts, to prevent oppression and injustice through an abuse of processes, and, failing1 to- do so, such action is subject to review7 on appeal. In this case, the judgment being void for the reasons above stated, an execution issued on it wras subject- to be superseded and quashed upon petition, and the void judgment to be set aside.

For the error indicated, the judgment appealed from is reversed, and the cause remanded.

Reversed and remanded.

Anderson, Sayre, and Somerville, JJ.,-concur.