7 So. 2d 864 | Ala. | 1942
A final decree in equity was rendered December 2, 1940. On December 28, 1940, appellants moved for a rehearing. Chancery Rule 81. Several continuances of the motion were made extending the last time to and including June 10, 1941. No order was made on the motion on that day, so that it then ceased to be within the power of the court. This appeal was taken within six months from that day, but more than six months from the date of the final decree. The question is whether the failure to act on the motion for a new trial deprived appellants of the right to appeal within six months from the time the court lost jurisdiction over the motion.
As between Rule 81 of the Code of 1923, Vol. 4, p. 932, and Rule 62, Equity Rules, of the Code of 1940, Tit. 7 Appendix, the former is operative under Rule 120, Code of 1940, by its express terms. But in the case of Williams v. Knight,
And that case also makes the following quotation from Richards v. Williams,
This Court had in three cases prior to Richards v. Williams, supra, held as thus declared in suits at law. Stallings v. Clark,
When the new equity rules were adopted, effective January 1, 1940, but not applicable to suits then pending by Rule 120, Code 1940, Tit. 7 Appendix, and when the new Code was adopted, effective May 31, 1941, there was no effort made to modify the principles thus declared, but there was manifested, as we will show, a tendency to make them more effective, as applied to suits in equity.
Rule 81 did not contemplate a decree in equity on an application for rehearing which was denied, and was out of line with many features of the same Code, and Rule 81 had been impliedly modified by sections 6636 and 6670, as was pointed out in Williams v. Knight, supra, All the cases in which this Court has acted on the subject in equity were those in which the application was denied by an order of the court. The case of Stallings v. Clark, supra, which first declared this principle at law, based it on section 6127, Code of 1923, Code 1940, Tit. 7, § 788, with special reference to the rendition of a judgment or decree. And held that since the only judgment rendered in the case was more than six months before the appeal was taken, it was not within the statutory period. That status is exactly the same in equity as at law. Therefore to save the time in equity, there should be an order denying the application as at law for there must be the rendition of a decree as provided in section 6127, Code of 1923. This is what Stallings v. Clark, supra, held.
There was a change made by the adoption of the new rules in equity, whereby Rule 81 was made to read as in new Rule 62. This change makes it positive that there must be a ruling on an application for a rehearing in equity, and that it requires such ruling to make effective the suspension of the time in which to appeal.
This emphasizes a purpose to have the principle first declared in Stallings v. Clark, supra (at law) to continue and to apply in equity, and to leave no room for doubt in that connection.
It is our view that the same status should continue to be thus declared by this Court in respect to decrees not subject to the effective operation of the new equity rules as well as to those which are controlled by them.
We have not failed to take note of the case of Housing Authority v. Abney,
In the case of MacMahon v. Dozier,
In the case of the Housing Authority v. Abney, supra, the motion for a new trial was made by defendant, and while said motion was in effect, but not acted on, and not discontinued, plaintiff took an appeal. We held that he could not do so. The reason is that he could not by his act destroy the motion for a new trial of his adversary. He could not discontinue it as if it were his own motion. So that had that motion remained without a judgment on it, but kept alive by continuances until the time expired for appealing from the main judgment, and then been discontinued without an order of the court, plaintiff as well as defendant would be without a remedy by appeal under a strict application of Stallings v. Clark, supra.
The cases in which the principle of Stallings v. Clark, supra, have been applied are those in which the movant for a new trial was also the appellant, and therefore the motion was in his power. He could have taken the appeal within six months by dismissing the motion, expressly or impliedly. If he waits until the expiration of the period in which to appeal, he must have a judgment of the court rendered within six months before the appeal is taken by the express provisions of the Code of 1940, Title 7, section 788, Code of 1923, section 6127. A discontinuance of the motion without an order of the court must be attributable to the neglect of the movant, of which he is in no position to complain. It is inconceivable that a judge would refuse to make an order on the motion when the movant had requested that he do so. What the movant's status would be upon a showing of due diligence by him has never been here considered, and not now determined.
But the adversary of the movant does not have the same control over the motion. The movant should not have the power by his own neglect to destroy the right of appeal by his adversary. He would not be in position to move to dismiss the appeal because of a condition which was peculiarly in his own power, or to make the point that the suspension of the right to appeal by his adversary did not effectually exist or became inoperative on account of a condition within his own control, and which he neglected.
Such is not the status of this case. The application for a rehearing was made by this appellant and it was in his power to control the situation so as not to lose his right of appeal. But he permitted his application to be discontinued without an order, when an order was necessary to keep intact his right of appeal.
Appeal dismissed.
GARDNER, C. J., and THOMAS and BROWN, JJ., concur.