Ex Parte Brickell

When the record shows due service of process or notice, and the judgment rendered is not void on its face, the court which rendered the judgment cannot, after the lapse of the term, either alter or vacate the judgment on the motion of either of the parties. The only remedy then available is a petition for rehearing under the provisions of the Code (sections 5371-5376), or by bill in chancery. This proposition is too well settled to permit of further controversy. Pettus v. McClannahan, 52 Ala. 55; Buchanan v. Thomason, 70 Ala. 401; Kohn v. Haas, 95 Ala. 479, 12 So. 577; Sweeney v. Tritsch,151 Ala. 242, 44 So. 184; Holloway v. Washington, 3 Ala. 668; Ex parte Ala. F. I. Co., 193 Ala. 496, 69 So. 115; Givens v. Tidmore, 8 Ala. 745; Hauser v. Foley Co., 190 Ala. 437,67 So. 252; Murphree v. Whitley, 70 Ala. 554; Dunklin v. Wilson, 64 Ala. 162; Max J. Winkler Brokerage Co. v. Courson, 160 Ala. 374, 49 So. 341.

The common-law writ of audita querela, if it was ever in use in this state, was long since abandoned, and the writ of supersedeas is now used in its stead. Lockhart v. McElroy,4 Ala. 573; Moore v. Bell, 13 Ala. 459; Branch Bk. v. Coleman,20 Ala. 140, 146; Marshall v. Caudler, 21 Ala. 490; Thompson v. Lassiter, 86 Ala. 539, 6 So. 33.

The writ of supersedeas, though a common-law writ, has been regarded as a substitute for a bill in chancery, where matter not apparent of record is set up as a discharge, either legal or equitable, of the judgment sought to be enforced. Branch Bk. v. Coleman, 20 Ala. 140; Lockhart v. McElroy, 4 Ala. 573; Henderson v. P. M. Bank, 178 Ala. 420, 59 So. 493. It is the contention of petitioner in this case that his petition to supersede the execution is in effect a bill in chancery and should be treated as such. This contention, however, cannot be sustained, in view of the restricted scope of the writ of supersedeas as defined by this court. In Thompson v. Lassiter,86 Ala. 536, 6 So. 33 (quoted with approval in Henderson v. P. M. Bank, 178 Ala. 420, 59 So. 493), it was said:

"In our practice, the proceeding by supersedeas is substituted for the writ, and generally will lie in the cases in which a writ of audita querela would lie at common law. Matter which operates an equitable satisfaction of a judgment may be inquired into by this proceeding, and an execution issued to enforce the judgment may be superseded and vacated; but matters which go behind the judgment cannot be inquiredinto." (Italics supplied.)

In Gravett v. Malone, 54 Ala. 19, it was said:

"That which forms the ground of relief on supersedeas must either rest on facts occurring subsequent to the decree, such as satisfaction, or, if it relates to antecedent facts, must show fraud in the decree, or want of jurisdiction in the court,apparent on the face of the record, or a denial of the relation which authorizes execution." (Italics supplied.)

In Marshall v. Caudler, 21 Ala. 490, it was said that —

"Neither the old writ of audita querela, nor our writ of supersedeas, which is used as its substitute, has ever been allowed to extend to matters arising anterior to the judgment."

While conceding this limitation as a general rule, it is assumed by the Court of Appeals that it has no application to judgments sought to be impeached for want of jurisdiction of the person of the defendant. This assumption is correct as to want of jurisdiction apparent upon the face of the record; but it is erroneous as to want of jurisdiction which can be shown only by going behind the record and impeaching it by evidence dehors. All of our decisions above recited are clear to this result.

But there is another consideration upon which the action of the Court of Appeals in granting the writ of mandamus, requiring the circuit judge to enter a supersedeas, must be sustained. The petition shows that the order and judgment of the circuit court, retaxing the costs in Gunter v. Pollock, was made after the adjournment of the term at which the original judgment in favor of Gunter, for the debt and all costs of suit, was rendered, and without any consent thereto by the plaintiff. No doubt this was done upon the theory that for the purpose of retaxation of costs a cause remains in fieri for at least a reasonable time, even after the lapse of the term. It was so ruled in the early case of Briley v. Hodges, 3 Port. 335, and the practice has never been disapproved, so far as we are advised, and was expressly approved in Lockwood v. Thompson Buchmann, 198 Ala. 295, 73 So. 504.

But the practice of retaxation to relieve a party from costs which are erroneously or wrongfully taxed against him by the clerk under a general judgment for costs in favor of the other party is a radically different proposition from the affirmative taxation of such costs, or a part of them, against the other party. In Noland v. Lock, 16 Ala. 52, it was said:

"A motion to retax the cost of a suit is simply a motion to correct the ministerial act of the clerk, or officer whose duty it is to tax the cost; but here the defendant in error did not move to have any mistake of the clerk corrected in taxing the cost, but by his motion he asked the court to alter the judgment for cost, and to render judgment against the other party; in one word, he asked the court to release him from the cost altogether, although judgment for the cost had been rendered against him, and to impose it on his adversary. Instead of being a motion to retax cost for a mistake of the clerk, it clearly is a motion to alter the final judgment that had been rendered at a previous term, which cannot be done."

The principle of this decision was reaffirmed in Gibson v. Wilson, 18 Ala. 63, where half of the costs were shifted from the defendant to the plaintiff; the court observing:

"It is not necessary to examine the facts of this case, for the purpose of ascertaining whether it was discretionary with the county judge to render judgment against the plaintiff for all or any part of the costs, or whether it was his duty to do so; for it is certain that, at the term of the court when the suit was tried, judgment was rendered against the defendant for all the costs, and, whether right or wrong, it could not be altered at a subsequent term."

And in the case of Harris v. Billingsley, 18 Ala. 438, after citing those two cases with approval, the court said:

"These authorities show that the orphans' court erred in attempting to render the judgment for costs against the plaintiffs in error, at a term subsequent to the final judgment."

Other courts have announced the same rule. Archer v. Cole (Tex.Civ.App.) 157 S.W. 1183; Smith v. Bartlett, 78 Neb. 359,110 N.W. 991; 15 Corp. Jur. 188, § 451. The judgment for costs entered against petitioner being unauthorized and void, for the reason just above stated, he is entitled to a supersedeas of the execution issued thereon, and the mandate of the Court of Appeals must be affirmed.

We are not to be understood as holding that the judgment on the motion was unauthorized and void in so far as it relieved the defendant of any of the costs originally taxed against her, for that part of the judgment was within the power of the court, even after the lapse of the original term. Writ denied.

ANDERSON, C. J., and McCLELLAN, SAYRE, GARDNER, and THOMAS, JJ., concur.

BROWN, J., not sitting.

On Rehearing.