18 Ala. 676 | Ala. | 1851
The view we take of the main point in this case renders it unnecessary for us to examine the question, whether the court should have allowed the papers to be filed and the cause placed upon the docket, at a term of the court subsequent to that to which they were properly returnable.
In the case before us, nothing was done at the term when the final judgment of non-suit was rendered, but to enter upon the motion docket a notice that the court would be moved to set the non-suit aside. This motion was not brought to the attention of the court; was not acted upon in any way, and, in our opinion, did not have the effect of continuing the case in court. If the plaintiff had sued out another writ after taking the non-suit, and pending this state of the record, could the pendency of such action have been pleaded in abatement? We are clear that it could not. The order that all motions and proceedings undisposed of, &c., should be continued, does not, in our opinion, continue this case in court, but we think that any motion to set aside a final judgment, not specially-called to the attention
In our opinion, the judgment of non-suit was final. The court, at the subsequent term had no power to set it aside, by reason of the entry upon the motion docket, and the subsequent action of the court in rendering judgment against the defendant by default was irregular, and the judgment is consequently reversed.