Agee & Co. v. Clark, 60 So. 640

Agee & Co. v. Clark

60 So. 640 | Ala. Ct. App. | 1912

WALKER, P. J.

The plaintiff’s (appellee’s here) motion for a new trial was made and submitted to the court for decision within the 30 days allowed for that purpose by the provision of section 11 of the Act “to regulate the practice and proceedings in civil cases in the circuit court of Jefferson county,” etc. — Acts Ala. 1888-89, p. 797. This submission was taken on Decem*130ber 10, 1910. The then pending term of tbe court could not continue beyond the last day of that month, “unless said day falls on a Sunday, then to and including the following Monday.” — Code, § 3210. By the terms of the section of the practice act above referred to an application for a new trial, made within the 30 days allowed, has the effect given by the general law to such a motion when made in term time. What that effect is was stated in the opinion in the case of Hundley v. Yonge, 69 Ala. 89, which has been followed in subsequent cases. — Ex parte Highland Avenue & Belt R. Co., 105 Ala. 221, 17 South. 182; Southern Ry Co. v. Jones, 143 Ala. 328, 39 South. 118.

In the opinion in the first-cited case it was said: “Such motions are not, however, like causes pending in the court in which no final action is had, continued by operation of law, if not decided at the term at which they are made; nor are they kept alive by the mere general order of continuance of all causes and motions not otherwise disposed of, which it is the practice of the court to enter at the close of each term. Unless it appears affirmatively from the record that the motion was made a.nd called to the attention of the court during the term at which judgment was rendered, and by the court continued, it is without vitality at a subsequent term, and the court has not'power to- entertain it.” So it appears that the extent of the court’s power in reference to the motion was either to decide it during the term at which it was submitted or by continuing it retain the right to dispose of it at a subsequent term.

In the present case the court did neither of these things,, but, without any order of continuance having been made, undertook to grant the motion during the next succeeding term. Following the rulings above referred to, it must be held that, at the time the court *131undertook to make the order for a new trial, it was without power to entertain and decide the motion previously made to that end. It follows that the judgment or order appealed from must be reversed; and an order will here be made dismissing the motion. We do not feel warranted in holding that the court retained the power to act on the motion at a subsequent term because the failure to continue it may have been chargeable against the court, and not against the counsel who had in due time submitted his application to the court for action upon it.

Reversed and rendered.