130 Ala. 189 | Ala. | 1900
Respecting judgments by 'default obtained in the Jefferson circuit court, section 1 of the act regulating practice in that court (Acts, 1888-89, p. 799) provides “that the court may for good cause shown allow such judgments so obtained by default to be set aside and demurrer or pleas to be filed on such terms as the court may think just; but no application to set aside such judgment, unless it be for some reversible error committed in the rendition thereof, shall be entertained by the court unless accompanied by 'an affidavit made by the defendant or his agent or attorney to effect, that in the belief of the affiant the defendant has a lawful defense to such suit.”
Section 11 of the same statute enacts “that final judgments rendered in said court shall after 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 are rendered had ended at the end of said thirty days; Provided, hoipever, that nothing herein contained -shall prevent parties from applying for new trials or rehearings within said thirty days, or destroy or change the effect of motions for new trials or rehearings when so made, * * * or shall prevent the court from the exercise of any power or jurisdiction conferred upon the circuit court touching final judgments.”
According to the petition here presented, the petitioner obtained a judgment by default on September 30, 1899. Within thirty days therefrom and during the same term the defendant in the judgment entered on the motion docket a motion to set aside that judgment, and on October 23, 1899, an order of court was made purporting to continue the motion “to the next call of the motion docket,” which call occurred at the same term on February 3d, 1900, on which last named day the motion was heard and granted. No 'affidavit was made -or filed relative to that -motion until November 9, 1899, at which time an affidavit to facts constituting a lawful defense to the original suit, made by agent of the defendant therein, was filed, and the same was used in support of 'the motion on the hearing thereof.
Ordinarily a court’s power over its final judgments expires with the term at which such judgments are rendered, and by the terms of the act referred to a like effect is produced by the lapse of thirty days from the rendition of judgment in the Jefferson circuit court. It cannot be doubted, however, that under the proviso quoted the power is left in that court to preserve control over judgments longer than thirty days in the same way that circuit courts governed by our general system may extend siuch power beyond the term. As to the latter courts, it is well established that motions for new trial continued from the term at Which the judgment was taken may be validly acted upon and granted or refused at a succeeding term. — 2 Brick. Dig., 276, § 4; Hundley v. Yonge, 69 Ala. 89. So a like motion continued to a time beyond thirty days, where that limit is placed upon the court’s control of judgments, may in the absence of express restriction, be acted on at the time appointed by the order of continuance. That this may be done is intimated, if not decided, in Ex parte Highland, etc., Co., 105 Ala. 221. As affecting the application of this principle, there can be no valid distinction between a motion for a new trial and a motion to set aside a judgment by default.
But for the petitioner it is insisted that by force of the statutory prohibition against the entertainment of applications.to set aside judgments by default in the absence of an accompanying affidavit, the court lacked power, though acting within the thirty days’ limit to continue the motion in question. In the writer’s opinion the answer to this is, that in continuing the application to set aside the judgment the matter entertained by the court was only the propriety of postponing the hearing of that application and was not the application .itself. Therefore, for the purpose of ordering the continuance, the affidavit was not required even by the strict letter of the statute. One of the standard 'definitions belonging to the 'word entertain is to “consider with reference
Accordingly the writ of mandamus will be awarded as prayed; the same to be issued unless on being informed of the order therefor the respondent shall voluntarily comply therewith.