20 Ala. 330 | Ala. | 1852
Benjamin P. Hunter brought an action on the case against Lowe, in the Circuit Court of Montgomery, and at the Fall term, 1850, obtained a verdict and judgment for $180 54-100. During the same term Lowe, the defendant, moved the court for a new trial, and the motion coming on to be beard, the following order was made: “Came the parties by their attorneys, and the defendant moves the court for a new trial, on the ground that the verdict was contrary to law and without evidence; which motion being beard and understood by the court, it is considered that a new trial be granted the defendant, on the payment of all the costs of suit.” The defendant did not pay the costs until the first day of the next succeeding term, when they were paid, and after-wards at the same term, the plaintiff moved the court to strike the case from the docket, because the costs bad not been paid during the previous term, at which the order was made. On the trial of this motion, it appeared that the plaintiff bad examined a witness by deposition, in the vacation between the two terms, and that be bad been cross-examined by the defendant. The defendant also examined several members of the bar, who testified that the usual interpretation put upon such orders was, that the cost should be paid by the next succeeding term. The court, however, granted the motion, and made the judgment absolute, to which the defendant excepted, and now moves the court for a mandamus to compel
Whether we should grant the writ depends on the proper construction of the order made at the Fall term, 1851. We cannot yield our assent to the proposition that this order was an absolute grant of a new 1rial. It is 'beyond doubt certain, that the presiding Judge did not intend to grant a new trial unconditionally; if he had, no condition would have been attached to the grant. It is therefore a grant of a new trial upon condition, and this condition was that the defendant pay all the costs of the suit. Had he then paid all costs that had accrued, the condition would have been performed. But he did not pay the costs until the next succeeding term. Was this a compliance with the condition? The well-settled rule is, that when the act constituting the condition is the payment of money, but the time when it is to be paid is not specified, then the money is to be paid within convenient time. Bacon Abr. Vol. 2, title, condition, 324; Carter v. Carter, 14 Pick. 424; Roberts v. Beattie, 2 Penn. 63. What is a convenient or reasonable time, must be ascertained by the circumstances of each particular case, unless in a particular class of cases the law has settled what shall be so considered; and we think that what is to be considered reasonable time in the case before us has been settled by the previous decisions of this court. In the case of Willis & Co. v. The Planters’ and Merchants’ Bank of Mobile, decided at the last term, (19 Ala. 141) the question arose upon an order setting aside a judgment, and granting a new trial, “ upon condition that the defendant pay all the cost ” that had accrued in the cause. The costs had not been paid, and at the next term, an order was made discharging the order of the previous term, and authorizing the plaintiff to proceed to enforce his judgment. We held, in conformity with the practice as indicated by our previous decisions, that such an order did not absolutely vacate the judgment, but its effect was to continue the cause in court until at the next term it was ascertained whether the condition was performed. To the same effect are the cases of Mansony v. Stephenson, 4 Ala. 317; Reese v. Billings, 9 Ala. 265. These decisions establish the practice, that such an order as the one before us may be complied with at, or by, the next succeed
Let the rule be entered.
