HOLDEN v. HOLDEN

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Docket Number

4 Div. 92.

Attorney(S)

Alice L. Anderson, Enterprise, for appellant. J. N. Mullins, Jr., Dothan, for appellee.

Judges

MERRILL, Justice.

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Smart Summary

Factual and Procedural Background

Joseph Holden filed a bill for divorce against Annie Ruth Holden, alleging habitual drunkenness and cruelty. Unable to locate the respondent in Dale, Houston, or Geneva Counties, the bill was amended to allow service by publication. After service was perfected, the divorce was granted on appellant's deposition on May 10, 1960. Subsequently, on June 29, 1960, the respondent filed a motion to set aside the divorce decree, claiming she was a resident of Houston County, that appellant knew her correct residence, that she was never served with a copy of the bill, never accepted service, and that the decree was procured by fraud. The trial court granted the respondent's motion to set aside the decree on December 29, 1960, effectively restoring the cause to the docket for further proceedings. The appellant appealed from this order.

Legal Issues Presented

Whether the trial court's order setting aside the divorce decree, which restored the cause to the docket for further proceedings, constitutes a final decree supporting an appeal.
Whether the motion to set aside the decree, filed more than thirty days after the final decree, was timely and whether the trial court retained jurisdiction to grant such relief.
What is the proper procedural remedy to review an order setting aside a decree that restores the case for further proceedings—appeal or mandamus?

Arguments of the Parties

Appellant's Arguments

The trial court lost jurisdiction over the final divorce decree thirty days after it was entered on May 10, 1960.
The motion to set aside the decree, filed on June 29, 1960, was therefore untimely and the court lacked authority to grant it.
The order setting aside the decree should be appealable as a final judgment.

Respondent's Arguments

The respondent was never properly served with notice of the divorce proceedings.
The decree was procured by fraud.
The trial court properly set aside the decree and restored the cause for further proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Capps v. Norden, 261 Ala. 676, 75 So.2d 915	Clarifies that an order setting aside a decree which restores the cause to the docket is not a final decree and thus does not support an appeal.	The court relied on this precedent to hold that the order setting aside the divorce decree was interlocutory and not appealable.
Scott v. Scott, 247 Ala. 266, 24 So.2d 25	Equity Rule 62 allows appeal only if the decree on rehearing modifies the original decree.	Referenced to explain limitations on appeals from orders setting aside decrees.
Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116	The court has inherent power to vacate judgments void on their face; remedy for refusal to vacate is appeal, but if granted and cause restored, mandamus is proper.	Used to distinguish the proper remedy (mandamus vs. appeal) depending on whether the cause is restored for further proceedings.
Constantine v. Constantine, 261 Ala. 40, 72 So.2d 831	Supports the inherent power of courts to vacate void judgments and the appropriate remedies.	Reinforces the principle that vacating a void judgment is not dependent on statute.
Sadler v. Sessions, 261 Ala. 323, 74 So.2d 425	Mandamus is the proper remedy when a void order reinstates the original cause for further proceedings.	Clarified to emphasize that mandamus applies only when the original cause is restored for further proceedings.
Ex parte Phillips, 231 Ala. 364, 165 So. 80	Mandamus is appropriate to challenge void orders restoring causes for further proceedings.	Supports the court's conclusion that mandamus, not appeal, is the proper remedy in such cases.

Court's Reasoning and Analysis

The court examined whether the order setting aside the divorce decree was a final judgment supporting an appeal. Relying on Capps v. Norden, the court noted that an order which sets aside a decree and restores the cause to the docket for further proceedings is interlocutory, not final, and thus not appealable under the statute governing appeals from final decrees. The court distinguished between motions to vacate void judgments that do not restore the case (which are appealable) and those that do restore the case (which require mandamus for review). Because the trial court's order restored the cause for further proceedings, the proper remedy was mandamus, not appeal. Consequently, the appeal was dismissed for lack of jurisdiction. The court also clarified the timing issue, explaining that although the motion to set aside was filed beyond the thirty-day period, the nature of the order and the procedural posture dictated that mandamus, rather than appeal, was the proper procedural vehicle.

Holding and Implications

Holding: The appeal from the order setting aside the divorce decree is dismissed because the order is interlocutory and does not constitute a final decree supporting an appeal. Mandamus, not appeal, is the appropriate remedy to challenge such an order.

Implications: The decision directly affects the parties by terminating the appeal and leaving the case restored to the trial court docket for further proceedings. No new precedent was established beyond reaffirming established procedural principles concerning the finality of orders setting aside decrees and the appropriate remedies for review.

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Joseph HOLDEN v. Annie Ruth HOLDEN.

MERRILL, Justice.

This is an appeal from a decree dated December 29, 1960, granting respondent's motion to set aside a divorce decree. Such a decree, if it restores the cause to the docket for further proceedings, will not support an appeal and the appeal must be dismissed. Capps v. Norden, 261 Ala. 676, 75 So.2d 915.

Joseph Holden filed a bill for divorce against respondent Annie Ruth Holden, charging habitual drunkenness and cruelty. The respondent was not found in Dale, Houston or Geneva Counties and the bill was amended to secure service by publication. After such service had been perfected, the divorce was granted on Holden's deposition, the decree being rendered on May 10, 1960.

The respondent filed a motion on June 29, 1960, to set aside the decree of May 10, averring that she was a resident of Houston County, that appellant knew her correct residence, that she was never served with a copy of the bill, that she never accepted service, and that the decree was procured by fraud. A demurrer to this motion was overruled, an answer filed and the cause was set down for hearing. The pertinent part of the decree reads:

"This cause coming on to be heard is submitted for ruling on the motion of the respondent to set aside, and hold for nought the final decree heretofore entered in this cause, the sworn testimony of the respondent taken in open Court, and the complainant having had notice of the time and place of said hearing and appearing not, and the Court being of the opinion that the said motion should be granted, it is therefore, "Ordered, adjudged and decreed by the Court that the respondent's motion to set aside and hold for nought the final decree heretofore entered in this cause be, and the same is, hereby granted.

"Done in chambers this December 29, 1960."

The main argument made here is that the trial court lost jurisdiction of its final decree thirty days after May 10, 1960, and the motion to set it aside, filed June 29, 1960, was too late.

The case of Capps v. Norden, 261 Ala. 676, 75 So.2d 915, 918, is in point. There, the final decree was dated October 30, 1953, and the motion to set it aside was filed December 17, 1953, more than the thirty days permitted by Tit. 13, § 119, Code 1940, and Equity Rule 65. The court said:

"Therefore the question arises, first, whether the judgment of the court vacating the final decree of October 30, 1953 is such as will support an appeal. If an appeal will lie it is on the theory that it is a final judgment under section 754, Title 7, Code.

"Equity Rule 62 justifies an appeal only when the decree on the motion for a rehearing modifies the decree sought to be set aside. Scott v. Scott, 247 Ala. 266, 24 So.2d 25.

"When a judgment or decree is void on its face the court rendering it has the inherent power and should on motion vacate it. Griffin v. Proctor, 244 Ala. 537(6), 14 So.2d 116; Constantine v. Constantine, supra ( 261 Ala. 40, 72 So.2d 831). We do not seem to have a statute which expressly refers to a motion to set aside judgments void on their face. The right to vacate it is not dependent on statute. And when the court refuses to vacate it on motion claiming that it is void on its face, the remedy for review is settled as pointed out in the case of Griffin v. Proctor, supra, to be by appeal because that is a final decree, see, Constantine v. Constantine, supra; but if it grants the motion and restores the cause to the trial docket for such other proceedings as are available, mandamus is the proper procedure to review it.

"This case is of the latter status. The order setting aside the decree had the effect of restoring the suit to the docket for another trial and was not a final decree and not governed by the general statute providing for an appeal from a final decree. Section 754, Title 7, Code."

The order setting aside the decree in the instant case had the effect of restoring the suit to the docket for another trial and was not such a final decree as would support an appeal.

The difference between Capps v. Norden, supra, and the instant case is that there, submission was both on appeal and on application for mandamus in the alternative; here, review is sought by appeal only.

Mandamus is the proper remedy when it is sought to have an alleged void order or judgment annulled on the ground that the court had lost jurisdiction of the case at the time the alleged void order or judgment was pronounced, and the effect of the order would restore or reinstate the original cause for further proceedings. Sadler v. Sessions, 261 Ala. 323, 74 So.2d 425; Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116(1); Ex parte Phillips, 231 Ala. 364, 165 So. 80. This same statement appears in Sadler v. Sessions, supra, without the qualifying clause "and the effect of the order would restore or reinstate the original cause for further proceedings." These words should properly have been added in that case. Their omission made no difference in the result because the trial court had granted a motion for a new trial which restored the original cause for further proceedings. We explain the statement in the Sadler case because, without such explanation, it might be construed as holding that mandamus is the proper remedy to review the refusal of a trial court to vacate a void decree, or where the trial court grants a motion to vacate a decree and the original cause is not reinstated for further proceedings. In such cases, the remedy is by appeal. Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116.

It follows that mandamus and not appeal is the proper remedy in the instant case and the appeal must be dismissed.

Appeal dismissed.

LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.