108 So. 379 | Ala. | 1926
The petition is for mandamus to a judge of the circuit court.
The right of review by appellate court is declared to be by certiorari. Woodward Iron Co. v. Bradford,
The statute giving the right of review by certiorari under the Compensation Act (Code 1923, § 7543 et seq.) among other things provides that the decision of the judge hearing the case is conclusive and binding, subject to the right of appeal (as construed by this court [sections 7571, 7578, Code]) from such decree; that any party aggrieved "may by certiorari within 30 days thereafter appeal."
What, then, is the decision and decree of the judge hearing the case from which the appeal may be taken and review had in the appellate court?
In Lewis v. Martin,
"In Lanier v. Russell,
The return of the circuit judge, respondent in the petition, is to the effect that "said judgment was rendered in its entirety on December 11, 1924"; that "whatever delay occurred in the enrollment of said judgment was the result of the petitioner's own conduct and solicitation, with full knowledge thereof, and without any fault whatsoever or responsibility therefor on the part of respondent, or any one else other than the petitioner and those who represented it"; that "the rendition of said judgment in its entirety on December 11, 1924, occurred in the presence of the petitioner's counsel and with their full and complete knowledge of the same, they being then and there given a copy of the same with the date thereon December 11, 1924, signifying the date of the rendition of said judgment"; that, "during the time that petitioner's counsel were seeking a rehearing and a change of said judgment, the term of the court at which said judgment was rendered expired"; and that thereafter respondent had no jurisdiction or power to change said judgment in any respect, there being no appropriate motion or anything else of record to justify or warrant respondent in altering said judgment, citing the case of Childers v. Samoset Mills,
The right of review by certiorari proceeded from the decree required by the statute of the judge hearing the cause. It is required that said "determination shall be filed in writing, with the clerk of said court, and judgment shall be entered thereon in the same manner as in causes tried in the said circuit court, and shall contain a statement of the law and facts and conclusions as determined by said judge" (Code, § 7578), and, "whenever any decision or order is made and filed by the court," the clerk is required to forward copy of same to the probate judge, and the same shall become a lien in like manner as other registered judgments, unless the same is made by law a preferred lien. Section 7580. These and other subsequent provisions of the statute must be considered in pari materia with the preceding provisions of that statute (section 7571) in the ascertainment of the nature of the "decree" from which the aggrieved party may "appeal" by "certiorari within thirty days" after its rendition.
It follows that the act of entry of the determination must be performed by its due enrollment "filed in writing with the clerk" before there is a determination that becomes a "decree" in the sense that the term is used in the statute providing for review by certiorari and the decisions. Lewis v. Martin,
The foregoing is not in conflict with Childers v. Samoset Mills,
After a careful consideration of the pleadings under the Workmen's Compensation Act, and its provision for decision and review, the time must be counted from the date of the filing with the clerk of the written expression of the decision and decree of the judge hearing the cause. Such are the decisions in chancery cases: Pollard v. Am. Freehold L. M. Co.,
Adverting to the sufficiency of judgment or order that would support an appeal, it should be indicated that the case of Bell v. Otts,
Pending and undisposed causes carried forward to subsequent terms by the general order of continuance were the subject of Lewis v. Martin,
The foregoing will suffice to illustrate that the date within which the statute will run for appeal and review by certiorari must be the filing for enrolling of the formal judgment required by the statute.
Writ granted.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.