106 So. 594 | Ala. | 1925
Petitioner, Blankenship, recovered a judgment in the circuit court against C. P. Minor on March 4, 1925. On March the 28th a motion was filed by defendant to set aside said judgment, and this motion was heard April the 11th, at which time the following order was entered by the court, to wit:
"It is hereby ordered, adjudged, and decreed by the court that the judgment in this case be set aside and the case is reinstated upon the defendant, C. P. Minor, within sixty (60) days after this date, paying all costs to date in this case."
Thereafter, on May the 29th, the defendant, Minor, filed a motion to modify or vacate so much of the order of April the 11th as required him to pay all cost within 60 days, and, on June the 11th, the last motion was granted.
The propriety of making the original order of April the 11th is not questioned in brief of counsel, but, it is insisted that the circuit court had no authority to make the change or modification of May the 29th because the order of April the 11th became final under the statute 30 days thereafter and before the motion was made for said change or modification. This insistence would be sound under section 6670 of the Code of 1923, had the order of April the 11th been a final judgment or decree as contemplated by said section, but the order was conditional and in the nature of an interlocutory rather than a final judgment, and was therefore in fieri, not only when the last motion was made, but when the modification was made. Ex parte Overton,
Section 7247 of the Code of 1923 applies to the retaxation of cost by the court when improperly charged or taxed, and has no application to a case like this, where the cost is imposed as a condition for relief.
The cases cited and relied upon by counsel were dealing with the statute as applicable to final judgments and not conditional ones like the one here involved.
The petition for mandamus is denied.
SAYRE, GARDNER, and MILLER, JJ., concur.
