Ex Parte Dayton Rubber Mfg. Co. , 219 Ala. 482 ( 1929 )

Where the record, as here, shows on its face, jurisdiction of the subject-matter and of the person, it is the settled rule of our decisions that the court rendering the judgment, after the expiration of the term or of the time through which its plenary power is preserved by the statute, is without authority to set aside and vacate such judgment, on motion invoking the exercise of such plenary power. Ex parte Brickell, 204 Ala. 441,86 So. 1; Ex parte Alabama Fuel Iron Co., 193 Ala. 496, 69 So. 115; Soulard v. Vacuum Oil Co., 109 Ala. 387, 19 So. 414; Kohn, Leberman Co. v. Haas, 95 Ala. 478, 12 So. 577. The rule goes, not to the unimpeachability of the judgment, but to the power of the court to inquire into its validity for want of service of process. Jefferson County Savings Bank v. McDermott, 99 Ala. 79,10 So. 154; Ex parte Brickell, supra; Crafts v. Dexter,8 Ala. 767, 42 Am. Dec. 666.

The petition in this case was not a motion addressed to the plenary power of the court, but is a petition for rehearing under the four months' statute, Code of 1923, § 9521 — a new suit or proceeding — in which the statute authorizes a court of law to interfere and grant relief in precisely the same class of cases in which a court of equity is accustomed to affording relief, and on the same principles. Renfro Bros. v. Merryman Co., 71 Ala. 195; Evans v. Wilhite, 167 Ala. 587,52 So. 845; Todd v. Leslie, 171 Ala. 624, 55 So. 174; Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304.

The evidence offered in support of the petition showing without dispute that process was not served, that the defendant had a good defense, and was without fault or negligence, the motion was properly granted. Alabama Chemical Co. v. Hall,212 Ala. 8, 101 So. 456; Crafts v. Dexter, 8 Ala. 767, 42 Am. Dec. 666. For this reason I concur in the conclusion that the mandamus should be denied.

ANDERSON, C. J., and THOMAS, J., concur in the foregoing.