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Alabama Affidavit in Support of Motion for Writ of Error Coram Nobis Regarding Default and Default Judgment Taken Against Defendant who did not Appear and was not Served

Category:
Affidavits - Writs
State:
Multi-State
Control #:
US-02170BG
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Word; 
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Description

Generally speaking, the writ of error coram nobis is employed, in cases where there is no other remedy, for the purpose of reviewing, correcting, or vacating a judgment in the same court in which it was rendered, on account of errors of fact. These errors of fact must affect the validity and regularity of the proceedings, and were not put in issue at the trial, or were unknown at the time of the trial to the party seeking relief without fault on his or her part. Also, the remedy may be available if such facts were unknown to the trial court, were not passed on by it, and, if known, would have prevented rendition of the judgment.


The writ of error coram nobis is not often granted in civil cases, but it is still available in some courts to correct an error of fact which resulted in the judgment. The coram nobis procedure has largely been replaced by motions to open or vacate the judgment or a writ of audita querela. A writ of audita querela is a writ which lies for a party against whom judgment is recovered, but to whom good matter of discharge has subsequently accrued which could not have been availed of to prevent such judgment.

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FAQ

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered ...

Default. (a) Entry . When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.

Once a default judgment has been obtained, the Claimant can take enforcement action to recover the judgment sum by, for example, instructing bailiffs, applying for an attachment of earnings order or obtaining a charging order over the Defendant's home.

The arraignment will take place as scheduled, without the defendant present, and defense counsel is REQUIRED to attend and SHALL be prepared to file a written waiver in open court at that time. The Waiver of Arraignment and Plea of Not Guilty must be on a paper form and signed by both counsel and the defendant.

Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings.

Rule 53(c) regulates the powers of the master. The court may specify or limit the powers or invite findings on particular issues, or to report evidence only.

Rule 55(a) authorizes the clerk to enter defaults upon the civil docket when the party fails ?to plead or otherwise defend?. Consequently, a party who has appeared can be in default for failing to file subsequent pleadings or otherwise defend.

Alabama Rules of Appellate Procedure Rule 55. Appellate mediation. (a) Introduction. An appellate court may direct the attorneys for the parties and the parties to appear before an approved mediator, who may be designated by the Court.

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Alabama Affidavit in Support of Motion for Writ of Error Coram Nobis Regarding Default and Default Judgment Taken Against Defendant who did not Appear and was not Served
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