Tag Archives: Seventh Wonder v. Southbound Records Inc. 364 So. 2d 1173 (Ala. 1978) 77-602 Alabama Supreme Court

Henry D. “Butch” Binford, Circuit Judge, 20th Judicial Circuit Court of Houston County (Civil Division, Dothan) Alabama, HEARING on MOTION TO VACATE OR MODIFY on Friday, April 20, 2017, at 1:30 PM (38-CV-2015-900261.00)

Attorney Jerry Michael Blevins presented to the Court:

Seventh Wonder v. Southbound Records

and

Cassioppi v. Damico

for the proposition that Judgment should have been rendered in favor of the Plaintiff, since Defendant had failed to appear at trial
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A judgment entered after one party fails to appear at trial is treated as a default judgment

See Cassioppi v. Damico, 536 So.2d 938 (Ala.1988)

(default judgment entered when defendants failed to appear at trial)

Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173 (Ala. 1978)

(parties failing to appear on the day the case was set for trial were in default);

see also,

Rule 55, Ala. R. Civ. P., Committee Comments
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Alexander v. Washington
………………………………………………..
707 So.2d 254

(1997)

November 7, 1997

Court of Civil Appeals of Alabama
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http://www.leagle.com/decision/1997961707So2d254_1945/ALEXANDER%20v.%20WASHINGTON
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Judge Henry D. “Butch” Binford asked if prior case law addressed Liability (Damages)

Lawyer Jerry Michael Blevins presented to the Court:
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“When the facts are such that all reasonable conclusions to be drawn from them are the same, they present a mere question of law for the court”
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Western Union Telegraph Co. v. Perry
………………………………………………..
3 Ala. App. 247

(1911)
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As cited in:

Batson v. Birmingham Trust

241 Ala. 629 (1941)

4 So.2d 307

6 Div. 675

October 16, 1941

Alabama Supreme Court

https://www.courtlistener.com/opinion/3251262/batson-v-birmingham-trust-savings-co/
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When the facts are admitted or are undisputed, and are such that men of ordinary intelligence may reasonably differ with each other as to the conclusion to be drawn from them, such facts, as a general proposition, present matters for the determination of the jury, and not a mere question of law for the court

It is only when the facts are such that all reasonable conclusions to be drawn from them are the same that they present a mere question of law for the court
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Batson v. Birmingham Trust
………………………………………………..
241 Ala. 629

(1941)

4 So.2d 307

6 Div. 675

October 16, 1941

Alabama Supreme Court
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https://www.courtlistener.com/opinion/3251262/batson-v-birmingham-trust-savings-co/
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Henry D. “Butch” Binford, Circuit Judge, 20th Judicial Circuit Court of Houston County (Civil Division Dothan) Alabama issues ORDER for hearing on MOTION TO VACATE OR MODIFY on April 20, 2017, at 1:30 PM (38-CV-2015-900261.00)
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http://wp.me/p5tuFO-1rU
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Henry D. “Butch” Binford, Circuit Judge, 20th Judicial Circuit Court of Houston County (Civil Division Dothan) Alabama, invited to ALTER or AMEND his NOVEL LEGAL THEORY Judgment, Monday, March 27, 2017 (3/27/2017) 9:50:07 AM (38-CV-2015-900261.00)
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http://wp.me/p5tuFO-1rI
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Henry D. Butch Binford, Houston County Circuit Court, 20th Judicial Circuit Judge, Dothan, Alabama (since February 12 2008) Huntingdon College (@HuntingdonColl) University of Alabama School of Law (@UALawSchool) former Veteran Prosecutor, in the Assault and Battery Civil case: Plaintiff v. Brian Ralph Beasley, Defendant (of Daleville, Dale County, Alabama) WHO FAILED TO APPEAR on the DAY the CASE (38-CV-2015-900261.00) WAS SET FOR TRIAL (February 21 2017) on February 23, 2017, espoused a NEW LEGAL THEORY when he ENTERED JUDGMENT for the DEFENDANT CONTRARY to Alabama Rules of Civil Procedure (ARCP) VII. JUDGMENT Rule 55: The rule eliminates the requirement of notice prior to entry of JUDGMENT BY DEFAULT when the DEFAULT arises from FAILURE TO APPEAR on the day the case is set for trial
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http://wp.me/p5tuFO-1rB
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Henry D. “Butch” Binford, Circuit Judge, 20th Judicial Circuit Court of Houston County, (Civil Division, Dothan) Alabama, invited to ALTER or AMEND his NOVEL LEGAL THEORY Judgment, Monday, March 27, 2017 (3/27/2017) 9:50:07 AM (38-CV-2015-900261.00)


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Unified Judicial System

State of Alabama

AlaFile E-Notice

38-CV-2015-900261.00

To: Jerry Michael Blevins
ATTYJMBlev@LawOfficeOfJerryMBlevins.com

Judge: Henry D. “Butch” Binford

NOTICE OF ELECTRONIC FILING

In the Circuit Court of Houston County, Alabama

Plaintiff

v.

Brian Ralph Beasley

38-CV-2015-900261.00

The following matter was Filed on 3/27/2017 9:50:07 AM

C001

Motion to Vacate or Modify

[Filer: Blevins Jerry Michael]

Notice Date: 3/27/2017 9:50:07 AM

Carla H. Woodall
Circuit Court Clerk
Houston County, Alabama
P.O. Drawer 6406
Dothan, AL 36302
334-677-4859
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DOCUMENT 51

In the Circuit Court of Houston County, Alabama

Plaintiff

v.

Beasley Brian Ralph
Defendant

Civil Action No.: CV-2015-900261

MOTION TO ALTER OR AMEND JUDGMENT

COMES NOW the Plaintiff, by and through his undersigned counsel, and respectfully moves the Court to alter or amend the judgment previously rendered in this cause, and in support thereof says as follows:

Relevant Procedural History

1. On May 12, 2015, Plaintiff filed his Complaint in this cause seeking damages stemming from an assault and battery committed on his person by Defendant on or about February 9, 2015

2. On July 2, 2015, Defendant filed his answer

3. On February 21, 2017, a bench trial occurred at which Defendant failed to attend in-person or through counsel

The only testimony presented at trial was Plaintiff’s, which was uncontroverted by other admissible evidence

4. On February 23, 2017, the Court rendered a final judgment in favor of Defendant

Discussion

5. Plaintiff contends that pursuant to Rule 55, Ala.R.Civ.P., because Defendant failed to appear at trial in-person or through counsel, he was entitled to a default judgment against Defendant on the assault and battery claim

See Seventh Wonder v. Southbound Records, Inc.,

364 So.2d 1173 (Ala. 1978)

(A party who fails to appear on the day the case is set for trial is in default);

and

Cassioppi v. Damico,

536 So.2d 938 (Ala. 1988)

(A judgment entered after one party fails to appear at trial is treated as a default judgment)

6. Plaintiff further contends that because his trial testimony was uncontroverted by other

1
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admissible evidence, he was entitled to an award of damages stemming from the assault and battery

7. Plaintiff contends the Court erred in not granting him a judgment, and in not awarding appropriate damages, on the assault and battery claim

WHEREFORE Plaintiff requests that the Court alter or amend the judgment previously entered in this cause, and grant him a default judgment against Defendant, and award him damages in the sum of $30,000.00, on the assault and battery claim, for the reasons set forth herein

Jerry M. Blevins
(BLE003)
Attorney for Plaintiff

OF COUNSEL:
Law Office of Jerry M. Blevins
Carr, Riggs and Ingram Building
7550 Halcyon Summit Drive, Suite 100
Montgomery, Alabama 36117
(334) 262-7600 (Voice)
(334) 262-7644 (Fax)
E-Mail: ATTYJMBlev@LawOfficeOfJerryMBlevins.com

2

Filing
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DOCUMENT 51

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing upon:

Mr. Brian Ralph Beasley
368 Hanchey Field Road
Daleville, Alabama 36322

via electronic transmission and / or by depositing a copy of the same in the U.S. Mail, postage prepaid this 27th day of March, 2017

Jerry M. Blevins
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Alabama Rules of Civil Procedure (ARCP) VII. JUDGMENT Rule 55.
………………………………………………..
(a) Entry
(b) Judgment
(1) By the Clerk

Committee Comments on 1973 Adoption

The rule eliminates the requirement of notice prior to entry of judgment by default when the default arises from failure to appear on the day the case is set for trial

Rule 55(a) authorizes the clerk to enter defaults upon the civil docket when the party fails to plead or otherwise defend
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Seventh Wonder v. Southbound Records, Inc.
364 So. 2d 1173
(Ala. 1978)
77-602
………………………………………………..
Alabama Supreme Court

December 1, 1978
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http://www.ecases.us/case/ala/c1102643/wonder-v-southbound-records-inc
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(A party who fails to appear on the day the case is set for trial is in default)
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https://www.courtlistener.com/opinion/1102643/wonder-v-southbound-records-inc/
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http://law.justia.com/cases/alabama/supreme-court/1978/364-so-2d-1173-1.html
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Cassioppi v. Damico
536 So. 2d 938
(Ala. 1988)
87-965
………………………………………………..
Alabama Supreme Court

November 18, 1988
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https://www.courtlistener.com/opinion/1932665/cassioppi-v-damico/
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(A judgment entered after one party fails to appear at trial is treated as a default judgment)
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https://casetext.com/case/cassioppi-v-damico
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Henry D. “Butch” Binford, Houston County Circuit Court, 20th Judicial Circuit Judge, Dothan, Alabama (since February 12 2008) Huntingdon College (@HuntingdonColl) University of Alabama School of Law (@UALawSchool) former Veteran Prosecutor, in the Assault and Battery Civil case: Plaintiff v. Brian Ralph Beasley, Defendant (of Daleville, Dale County, Alabama) WHO FAILED TO APPEAR on the DAY the CASE (38-CV-2015-900261.00) WAS SET FOR TRIAL (February 21 2017) on February 23, 2017, espoused a NEW LEGAL THEORY when he ENTERED JUDGMENT for the DEFENDANT CONTRARY to Alabama Rules of Civil Procedure (ARCP) VII. JUDGMENT Rule 55: The rule eliminates the requirement of notice prior to entry of JUDGMENT BY DEFAULT when the DEFAULT arises from FAILURE TO APPEAR on the day the case is set for trial
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http://wp.me/p5tuFO-1rB
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