Ex Parte Gunter

SAMFORD, J.

A judgment was rendered in the circuit court of Cullman county, in a suit there pending, in favor of the plaintiffs, Gunter & Gunter, and against the defendant, Ignatus Pollock, for the debt and costs. After adjournment of the court the defendant made a motion to retax the costs. The court made an order that notice of the motion be served on W. A. Gunter, one of the plaintiffs, who resided in Montgomery, Ala. The return of the sheriff of Montgomery county -shows this notice to. have been served on W. A. Gunter, but the allegations - in the present petition, which under the state of the pleadings we must take to be true, shows that there were two W. A. Gunters in Montgomery, and charges that the return of the sheriff is false, and that neither the plaintiff W. A. Gunter or his partner' ever received notice of the pendency of the motion. The court, however, acting upon the face, of the return, and by default, retaxed the costs as prayed in the motion and rendered judgment against the plaintiffs for the amount of costs -so re-taxed. When execution was issued and sent' to the sheriff of Montgomery county for levy the plaintiffs, then for the first time becoming aware that the judgment had been so rendered, filed a motion audita querela in the court of Cullman county, setting up the above facts and praying that the judgment be set aside. This motion was continued from term to term on account of the fact that the then presiding judge of the circuit was disqualified, until it was finally set for hearing on the 1st day of August, 1919. On that day, not being called to the attention of the court, and the court adjourning without taking action on the motion, it was discontinued. C. C. rule 22 (Code 1907, vol. 2, p. 1522). Thereupon relator refiled the motion, stating all the facts, asking the same relief' on the same grounds, and excusing his nonappearance in support of the motion, and praying the court to.make an order restraining .the collection of the judgment until the motion could be heard upon such terms as the court might deem just. The court filed the motion, but refused to enter the order restraining the collection of the judgment. The prayer of this petition is for an order directed to the judge df the circuit court of Cullman county commanding him to make the restraining order as prayed.

[1,2] The germ of life in the constitutional system of this country is the'jealousy with which it guards the life, liberty, and property of the individual. This principle has found expression in the written Constitution of every- state and in the Constitution of the United States, and nowhere is it more strongly stated than in the words of the Fourteenth Amendment to the federal Constitution;

“Nor shall any state deprive any person of life, liberty or property without due process of law.”.

For this purpose there is retained in our jurisprudence the essence of all the remedial writs known to the common law, and in proper cases these remedies may be invoked to prevent injustice aid inequities, wherever found. Among these writs are those of audita querela and supersedeas, which in this jurisdiction have been combined, and under which matters which operate to annul a judgment for want of jurisdiction of the parties, where the facts are not apparent on the face of the record, may be inquired into, and an execution issued to enforce the judgment may be superseded pending the inquiry. 15 Am. Dec. 695, note; Henderson v. P. & M. Bank, 178 Ala. 420, 59 South. 493. It will be noted that in the ease just cited the judge writing the opinion used the expression: “But matters which go behind the judgment may not be inquired into.” This relates to judgments not sought tQ be impeached for want of jurisdiction. It would be a monstrous proposition to say, on direct attack of a judgment, it could not be shown that the defendant was never legally before the court. The proceeding in this case is a direct attack on the judgment, alleging that the parties were never served with process or otherwise had notice before judgment was rendered against them. If that is s.o, the judgment is void, and, although written in the minutes of the court, it is no record, and, although the minutes may recite notice by service, it may be shown to-be false. 1 Black on Judgments, § 288; Herring v. Ricketts, 101 Ala. 340, 13 South. 502.

The relator should have been allowed 1o supersede the judgment pending the hearing of the motion, upon giving bond in sufficient amount to pay such judgment as might be' rendered.

Let the writ of mandamus issue as prayed.