130 Ala. 201 | Ala. | 1900
The light of the petitioner to the writ of man dam us is dependent solely upon the solution of the question, whether there ivas a discontinuance of the motion for a new trial. If there was not, the writ must he denied. It appears from the respondent’s answer and from a certified transcript of the motion docket, upon which the motion for the new trial ivas entered, that the motion was made at the term of the court at which the judgment was rendered, and was called to the attention of the presiding judge who then and there continued it in open court, and at the same time made a memorandum of his order upon the margin of the motion docket opposite the style of the cause. It is true the clerk failed to enter upon the minutes of the court the order of continuance and it is on account of the result of his failure or neglect in this respect that petitioner predicates her contention 'that the court lost its authority or jurisdiction to make the order for the restitution of the possession of the lands involved in the judgment, which the motion, if granted, would vacate.
It. cannot be doubted that if the continuance of the motion had been entered upon the minutes of the court, that the cause would have 'been in fieri and the court would have had entire control of it possessing the power to make any order at a subsequent term that may be proper.—Barron v. Barron, 122 Ala. 194, and authorities cited. In Bouv. Law Dictionary, a discontinuance in practice, is defined to be “The chasm or interruption in proceedings occasioned by the failure of the plaintiff to continue the suit, regularly from time to time as he ought.” It is in substance and effect an abandonment of the moving party of his pending cause.—Ex parte The State of Alabama, 71 Ala. 367.
It has been many times decided by this court, that official neglect or refusal of the clerk to perform the duties required of him, will not operate a discontinuance.—Wiswall v. Glidden, 4 Ala. 357; Drinkhard v. The State, 20 Ala. 9; Harrall v. The State, 26 Ala. 52; Brown v. Clements, 24 Ala. 354; Ex parte Remson, 31 Ala. 270; Glenn v. Billingslea, 64 Ala. 345. This principle was applied and enforced in the case of Yonge v
The cases of Gunnells v. State Bank, 18 Ala. 676, and Hundley v. Yonge, 69 Ala. 89, relied upon by petitioner, are not in conflict with these principles. On the point here decided, they simply hold that where a motion is entered on the motion docket and not acted on or called to the attention of the court at the term at which it was made, a general order of continuance of all the causes and motions not otherwise disposed of will not have the effect to continue the motion. It is scarcely necessary to say that they have no application to the case under consideration, nor is it necessary to say more to differentiate them from the one in hand.
A majority of the court place the refusal of the writ upon .the nunc pro tune proceeding.
The rule nisi heretofore issued will be discharged and the writ of mandamus denied.