Ex parte Beavers, 34 Ala. 71

Ex parte Beavers

34 Ala. 71 | Ala. | 1859

WALKER, J.

In reference to the motion for a new trial, the order was as follows: “It is considered that said motion be granted, upon the payment of all the costs in this case, and the costs of this motion, within ninety days, for which let execution issue.” If the words *73italicized bad been omitted, tbe order would have prescribed tbe payment of tbe specified costs as a condition precedent ,to .tbe grant of a new trial. Tbe effect of sucb an order-as this would be,-without tbe words “for which let execution issue,” is settled in this State by the decisions in the cases of Ex parte Lowe, 20 Ala. 330; and Willis v. Planters’ & Merehants’ Bank of Mobile, 19 Ala. 141. See, also, Edwards v. Lewis, 18 Ala. 494; Walker v. Hale, 16 Ala. 26; Reese v. Billing, 9 Ala. 260; Stephens v. Brodnax & Newton, 5 Ala. 258; Stephenson v. Mansony, 4 Ala. 317.

In the presence of the words directing the issue of execution, this order differs from all the others which bave been held to prescribe a condition precedent. It is a cardinal rule in the ¡construction of statutes, deeds, wills and other instruments, to give effect, if possible, to all their parts. — Miller and Wife v. Flournoy’s Heirs, 26 Ala. 724; Gibson v. Land, 27 Ala. 117; Petty v. Booth, 19 Ala. 633; Smith on Stat. 646, § 501; 1 Black. Com. 89. Blackstone’s statement of tbe principle of construction is, that one part of a statute must he so construed by another, that tbe whole may, if possible, stand; ut res magis valeat, quam pereat. In tbe contemplation -of this rule, a clause may, for the sake of allowing ¡effect to some other part of the same instrument, receive 'a construction different from that which would have been adopted, if.it had stood alone. Otherwise, the rule would be vain and useless.

If the principle of construction, which we have announced, be correct in reference to statutes, ■ contracts, and wills, it is applicable with peculiar force to the judgments and orders of courts of record, which, must be supposed to act with great solemnity and deliberation. That would, indeed, be a violent presumption, which would attribute to sucb tribunals a want of design in any of tbe parts of their solemn judgments, or the absurdity of inserting irreconcilably conflicting judicial commands in the same entry. The order now before us must, therefore, if possible, receive such a construction, that all its parts may stand and bave a meaning.

The order that a new trial be granted upon the payment *74of the specified costs, would, under our decision, make a compliance with the condition by the payment of the costs optional with the party. The condition of such an order would be one for his benefit, which he might accept or waive. — Walker v. Hale, 16 Ala. 27; Stephenson v. Brodnax & Newton, 5 Ala. 258. No execution could issue upon such an order. Process could not issue to compel the performance of an act which is optional. If, then, the order is understood as granting a new trial upon condition precedent, the court, in directingfthe issue of an execution, has done that which was wrong, and commanded that to be done which cannot be done consistently with the antecedent part of the order.

It is manifest that the order for the issue of execution can have no effect, if the grant of new trial was conditional. We find the latter as well as the former clause in the order. The record of the court announces the one as well as the other. Are we to discriminate between the two, and say that the former must stand, and the latter be rejected? that we are to regard the former as the sole exponent of the meaning of the court, and that the court meant nothing in directing its clerk to issue execution? We are certainly not to do so, if the two-clauses maybe so construed that they may stanfl together.

The language of the order, that a new trial “be granted upon the payment of all the costs,” has, in other States, been understood not to import a condition precedent, as is admitted by the opinion in Willis v. Pl. & M. Bank, supra. — Gilliland v. Rappleyea, 3 Green, (N. J.) 138; Johnson v. Taylor, Reed & Co., 3 S. & M. 92. By understanding the court, in ordering the new trial upon the payment of the costs, to state the terms upon which it was then granted, an effect is allowed to every part of the order, and no greater liberty is taken in the construction of the language than is permissible in order to avoid a total exclusion of a part of the order. Effect is allowed to the proscribing of ninety days, as the time within which the costs were to be paid, by regarding the order as directing the expiration of ninety days as the time at which the payment of costs might be coerced.

*75Because we regard the order as an unconditional grant of a new trial, we overrule the motion for a mandamus, at the costs of the petitioner.