Ex parte Massie

131 Ala. 62 | Ala. | 1901

DOWDELL, J.

The petitioner prays for rule nisi to be directed to the chancellor to show cause why a peremptory mmdamus should not issue commanding bim to vacate a certain order made by him on November 1, 1901, in the case of Jessie H. Massie v. L. J. Oullen et al. pending in the chancery court of Mobile county, in which a final decree rendered in said cause on October 29, 1901, was set aside. The petition shows that on October 24, 1901, the said cause was argued and regularly submitted for final decree on the pleading's and evidence. On October 29, 1901, the chancellor, rendered a final decree, which was on that c!ay regularly filed. On October 31, two clays later, a motion was made to set side said decree upon the ground that Emma P. Cullen, one of tlie respondents in the bill, had died before the rendition and filing of said decree. It was shown that the said respondent, Emma P. Cullen, died about six o’clock on the morning of the day of said decree.

It is contended- by petitioner that the doctrine laid down by this court in Powe v. McLeod & Co., 76 Ala. 418, is ivrong in principle and -should be overruled, and it is further insisted that there should be no distinction in the rule 'as applied to judgments of the Supreme Court in such cases and to decrees of the chancery -court. We cannot agree to this contention, and we adhere to the doctrine as laid doAvn in Powe v. McLeod, & Co., supra. It is a general rule that in judicial proceedings, fractions of a day are not regarded, but -such proceedings take effect in law from earliest period of the day upon AAdiich they originated and came into force, but this general rule is not absolute, and where from the nature of the case justice requires it, fractions of a clay are reckoned. — 8 Am. & Eng. Ency. Law (2nd eel.), pp. 739-742. The unity of a clay and its indivisibility 'as a period or point of time is a fiction of the law, and is regarded only in promotion of the ends of justice, and never Avhen justice and -right Avill thereby be defeated. This fiction of the Law had its origin in the common law, and while the courts of England have generally adhered to it, still in those courts the rule has not been universal in its observance. The courts of this country, however, have been disposed to depart from the rule, and fractions of a day are reckoned where justice requires it. Many cases will be found cited in the notes on this subject in 8 Amer. & Eng. Ency. Law (2nd ed.), on pages 738-9-40-41-42-43, and we content ourselves AAdth reference to these notes Avitliout going into any prolonged discussion of the subject. In Patterson’s Appeal, 96 Pa. St. 93, it Avas held that where judgment is entered on the same day, hut after the death of defendant debtor, the legal fiction of relation of judgments -does not apply, and it is not entitled to priority of payment- out of the proceeds of the sale of real estate over the claims of general creditor®. The doctrine asserted in this case is directly in point and applicable to the case at bar. Our conclusion is that the decree in the present case, having been rendered after the death of Emma P. Cullen, who was a material defendant in the cause, was void, and the chancellor committed no error in setting aside the decree on motion. The petition for mandamus will be denied.