B. D. Atkinson has filed here an original petition for a writ of mandamus to the Honorable F. M. Smith, as Judge of the Covington Circuit Court. The purpose is for us to command the respondent to hold for naught an order by which he set aside a default and a judgment in a nonjury action on a note.
The default judgment was taken by Atkinson on November 6, 1959; the petition to set aside was filed some one hundred days later. After the passage of thirty days beyond judgment, the circuit court's jurisdiction can rest only on the four months statute, Code 1940, T. 7, § 279. Cf. Code 1940, T. 13, § 119; T. 7, § 276; Circuit Court Rule 11, Code 1940, Tit. 7 Appendix.
The pertinent allegation of the petition was—"to which suit your petitioner has a meritorious defense." Atkinson demurred giving, among other grounds:
The trial judge overruled the demurrer and restored the cause to the appearance docket.
We consider the demurrer should have been sustained. In Chastain & Lawrence v. Armstrong, 85 Ala. 215, 3 So. 788, 789, the court, per Somerville, J., said:
Accordingly, the writ will issue. Writ granted.