This case was transferred to this court from the Court of Appeals on February 19, 1958, because the judgment appealed from was for $1,035 which is outside the jurisdiction of the Court of Appeals. Code 1940, Tit. 13, § 86. Submission here was on the merits and on appellant's petition for mandamus in the alternative.
The plaintiffs, Mr. and Mrs. Roy Handley, brought suit in the circuit court of
The defendant James demurred to both of these counts separately and here insists that the overruling of each of his said demurrers was erroneous.
We are unable to determine clearly, from reading these two counts, the particular theory or theories upon which appellees seek recovery. It would appear from some of the language used that the basis for recovery is James' negligent performance of his duties as appellees' attorney.
In Court 4-A the claim is for "damages obtained by the defendants from the plaintiffs who acted on the advice of the defendant, W. E. James." It may be that this is an attempt to charge James with negligence in advising appellees as their attorney. Clearly, it is inadequate in that respect. In the first place, there is no allegation showing the relationship of attorney and client between James and appellees.
In Court 5-A an apparent attempt is made to charge defendant James with negligence in the performance of his duties as appellees' attorney. However, the negligence charged is that he "drew or cause [sic] to be drawn two checks, one for the sum of Six Thousand Eight Hundred Twenty-Three and Sixty-Seven/OneHundreds Dollars ($6823.67), the other, One Thousand One Hundred Seventy-Six and Thirty-Three/One Hundredths Dollars ($1176.33) as the purchase price in a transaction by which the plaintiffs purchased land from the defendant, T. T. Tanner." Construing this allegation most strongly against the pleader it certainly is not clear whether the defendant James is being charged with
Both Counts 4-A and 5-A fail to allege facts sufficient to show the violation by defendant James of any duty owed by him to the plaintiffs-appellees.
It appears, from reading the trial court's charge to the jury, that perhaps plaintiff's seek to charge defendants in Count 4-A with legal fraud as defined in Code 1940, Tit. 7, § 108. If so, we think the count is also insufficient in that respect. Whether there has been legal fraud, as defined in § 108, depends upon the particular facts and circumstances in each case. The facts relied on as constituting such fraud should be set out. In Count 4-A there is nothing to indicate the nature of the relationship between plaintiffs and defendant James, nor are the factual circumstances showing a legal fraud sufficiently set out. It is a general rule of pleading that "the complaint shall state the material issuable facts indicating plaintiff's right to recover." Singer Sewing Machine Co. v. Teasley, 198 Ala. 673, 675, 73 So. 969, 970; Alabama Great Southern Railway Co. v. Cardwell, 171 Ala. 274, 280-281, 55 So. 185.
As already noted, appellant seeks mandamus in the alternative, that is, if it should be determined that the judgment will not support an appeal then a review is sought by way of mandamus. The position taken by appellant is that the judgment, being in form a joint judgment against both defendants, is void because personal service was not had on defendant Tanner, a non-resident; that, being void, the judgment will not support an appeal. We are unable to agree that the judgment against James is void because it may be void as against Tanner. Personal service was had on defendant James. Even though it should be determined that the judgment against Tanner is void this alone would not make the judgment against James also void. Code 1940, Tit. 7, §§ 139, 147; Carswell v. B. F. Kay & Son, 214 Ala. 619, 108 So. 518.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, SIMPSON, MERRILL and COLEMAN, JJ., concur.