Ex Parte Richerzhagen , 216 Ala. 262 ( 1927 )

The petition for the writ of mandamus and the return to the alternative writ show that on the 8th day of September, 1926, a judgment by default, with writ of inquiry to ascertain the amount of plaintiff's damages, was entered in favor of the petitioner against H. E. Putnam in a suit then pending in the circuit court of Jefferson county, and on the 12th day of October, 1926, the writ of inquiry was executed and damages assessed by the verdict of the jury, followed by a final judgment for the plaintiff. On the 9th day of November, the defendant in the suit filed a motion to set aside the judgment on grounds, among others, that the defendant had a good defense to the action, which he was prevented from making through accident or mistake. This motion was continued from time to time until January 29, 1927, when it was granted, the final judgment set aside, and the case restored to the docket for trial.

This motion was addressed to the sound discretion of the court, and the question presented here is whether or not the court had lost control over the judgment by lapse of time.

Under the decisions of this court the judgment was interlocutory until the writ of inquiry was executed and the damages assessed. Ex parte Overton, 174 Ala. 256, 57 So. 434; Ex parte Bozeman, 213 Ala. 223, 104 So. 402; Blankenship v. Hail, 214 Ala. 95, 106 So. 594. The motion was made within 30 days from the rendition of the final judgment, and the court acted within its authority in granting the motion.

The fact that the writ of inquiry was executed before another division of the court, presided over by a different judge, is immaterial. The power to set aside the judgment was inherent in the court, not the judge.

The writ of mandamus is denied.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.