165 So. 584 | Ala. | 1936
Petitioner insists (as the main question in the case) that the order of continuance entered October 26, 1933, was valid, and that plaintiff in the action, having *431
accepted the continuance on the conditions therein stated, cannot thereafter question its validity. Humes v. O'Bryan
Washington,
But this does not answer the exigencies of petitioner's case. Though indefinite both as to amount and time of payment, yet for the purpose in hand the validity of the order may be conceded. It was not, however, an order on condition (Ex parte Abrams,
As previously observed, the order was one imposing terms only, and the granting of petitioner's prayer for relief in the instant case would be paramount to a denial of the court at a subsequent term to exercise a sound discretion as to whether or not the terms of the order should be modified, or else result in a holding that such modification by the court would be a gross abuse of discretion. Morris v. McElroy, supra; City of Birmingham v. Banks,
Clearly no abuse of discretion is made to appear, and that the court at a subsequent term may make such modification in the exercise of a sound discretion, is, we think, established by our decisions. Rhea v. Tucker,
The principle recognized, therefore, in Humes v. O'Bryan Washington, supra, and McLaughlin v. Beyers, supra, is here without application. The question is one, not of plaintiff's legal right to avoid the order, but of the power of the court, in the exercise of a sound discretion, to subsequently modify its terms.
Other theories for a denial of the writ are here argued, but consideration thereof is pretermitted, as the foregoing views are conclusive of the case against petitioner upon the merits.
It results that the writ will be denied.
Mandamus denied.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.