# Ex Parte Johnson

> Court of Civil Appeals of Alabama · November 7, 1997 · 707 So. 2d 251

URL: https://www.frixlaw.com/law-library/cases/9938047

## Case

- **Full name:** Ex Parte Kenneth Lance Johnson. (Re Kenneth Lance Johnson v. Sharon Brown Johnson). Kenneth L. Johnson v. Sharon Brown Johnson.
- **Court:** Court of Civil Appeals of Alabama
- **Decided:** November 7, 1997
- **Citations:** 707 So. 2d 251; 1997 WL 694738
- **Precedential status:** Published
- **Opinion:** Dissent by Crawley
- **Judges:** Crawley, Thompson
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9938047

## Opinion text

Although I concur with the dismissal of the appeal, I respectfully dissent from the denial of the petition for the writ of mandamus. The trial court's decision to treat the wife's post-judgment motion as a Rule 60(b), Ala. R. Civ. P., motion was error and the husband is entitled to relief.
Because the wife's motion was filed within 30 days of the judgment and sought relief available under Rule 59, Ala. R. Civ. P., it should have been treated as a Rule 59 motion. Sexton v. Prisock , 495 So.2d 581 (Ala. 1986); Simmons v. Simmons , 390 So.2d 622 (Ala.Civ.App. 1980). Allowing the trial court to treat the pleading as a Rule 60(b) motion permits Rule 60 to destroy Rule 59.1. See Ex parte Adams , 534 So.2d 626
(Ala.Civ.App. 1988). The fact that the substance of the wife's motion alleged fraud makes no difference. See Ex parte Alfa Mutual General Ins. Co. , 684 So.2d 1281 (Ala. 1996). Because the wife's motion was not ruled on in 90 days, it was denied by operation of law and the trial court had no jurisdiction to entertain it as a Rule 60(b) motion.
The law is clear in this case. The husband is entitled to mandamus relief. This court *Page 254
should not be swayed by what appear to be the equities in favor of the wife.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9938047. Public record. Not legal advice.