| Ala. | Nov 15, 1894
The 20th section of the act to amend
Unless an application for a new trial or rehearing is founded on the statute — sections 2871 and 2872, the one within two years, for a release found after the rendition of the judgment, and the other within four months thereafter, for surprise, accident, mistake or fraud without fault on the part of defendant — the term of the court is the limit within which new trials may be granted by the court.—Walker v. Hale, 16 Ala. 27; Pratt v. Keils, 28 Ala. 396; Florence Cotton & Iron Co. v. Field, 104 Ala. 471" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/florence-cotton--iron-co-v-field-6515839?utm_source=webapp" opinion_id="6515839">104 Ala. 471. If a motion for a new trial has been made during the term at which a judgment is rendered, and the same has been continued, the court may, at a subsequent term, hear and dispose of it. — 2 Brick. Dig. 276, §§• 3, 4. Such motions, however, are not continued by operation of law, if not decided at the term at which they are made. The usual general order of continuance, that “all causes and motions not otherwise disposed of are hereby continued until next term,” will not keep such a motion alive ; but, in order to give it vitality at ,a subsequent term, and give the Gourt power then to act on it, it must affirmatively appear from the record in the cause, that the motion was made and called to the attention- of the court and continued during the term at which the. judgment was rendered, otherwise the court is ever
The rule of practice for the circuit court, No. 2, requires the clerk to keep a separate docket on which to enter all motions made during the term. This rule, under the statute creating the city court of Birmingham, (Acts 1888-89, p, 1000, § 20), apjfiies as well to the said city court. Rule 22 provides, that “all motions not acted on, or continued by order of the court, are to be considered discharged of course on the last day of the term.” The keeping of this docket is directory and not mandatory. It is prescribed as a matter of convenience. If a motion were made, entertained and acted on, and the motion and ruling of the court entered on the record, the proceeding would, to all intents and purposes be as efficacious as if the motion and ruling had first been entered on the motion docket, and then entered of record. The motion docket, as we have repeatedly held, is no part of tho records proper of the court, and the proceedings shown by it can only become so, by being-enrolled as a matter of record, or by bill of exceptions.—Lienkauff & Strauss v. The Tuscaloosa S. & A. Co., 99 Ala. 619" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/lienkauff--strauss-v-tuskaloosa-sale--advancing-co-6515281?utm_source=webapp" opinion_id="6515281">99 Ala. 619. It was of no more controlling effect, therefore, that said motion was entered upon the motion docket, when the attention of the court was not called to it, and its action thereon invited, than if the motion, with like lack of attention, had been entered on a separate paper.
By the positive terms of the 20th section of said act, amending the act establishing said city court, which is set out above, it is provided, “That final judgments and decrees rendered in said court shall, after the expiration of thirty days from their rendition, be taken and deemed as completely beyond the control of the court, as if the term of said court at which said judgments and decrees are rendered had ended at the end of said thirty days.” The end of thirty days after final judgments and decrees have been rendered in said court, as to them, is thereby made the end of the term of the court, and thereafter, the court has no more power or control over them, than it.would have, if the term had finally adjourned. Our conclusion is, that the court was without power to pass on said motion as presented.
Mandamus denied.