Lewis v. Wood

42 Ala. 502 | Ala. | 1868

BYRD, J.

1. Two questions are raised by the assignments of error. 1st. Whether the court “ erred in imposing the plaintiff’s attorney’s fee on the defendant, as a condition of continuance on the first call for trial; ” and 2d, “in refusing (at a subsequent term of the court) to hear an application for continuance until the previous order had been complied with.”

The question of the authority of the court to enter a judgment' against the defendant below for the attorney’s fee, is not raised by any assignment of error.

The court might have the authority to impose terms for a continuance when it had none to enter a judgment thereon, if the terms were accepted. But, however this may be, we will proceed to the determination of the question of the power of the court to impose the payment of fifty dollars as an attorney’s fee upon the defendant as a condition for a continuance.

In this case the defendant accepted the terms and took the continuance. The record does not show that the defendant complied with the rule of practice (No. 16, Code, 715,) in making application for a ’continuance at the first trial term; nor can we presume that he did so. And as he assented to the terms without reserving any exception or, so far as we can see, making- any objection thereto in the court below, he can not be permitted for the first time to make the objection in this court. If he had refused to accept the terms, and had excepted to the ruling of the court, and reserved the question by bill of exceptions, and the court had proceded to render a judgment nil dicit without allowing the defendant a trial by jury, on appeal, the question would assume a different aspect from the one presented on this record. The doctrine on the general subject is laid down in the case of the M. & W. R. R. Co. v. Persse, Taylor & Co., 25 Ala. 536; see, also, Brown v. Riddle, 11 Ala. 743; Porter v. Williams, 22 Ala. 525 ; 20 Ala. 128 ; 25 Ala. 498 ; Locket v. Child, 11 Ala. 640. The last case cited might be considered in conflict with the first, but it is not, and they are clearly reconcilable with each other.

2. The question of the correctness of the action of the court in rendering a judgment nil dicit, is not raised by the assignments of error, though argued by counsel. The question raised is, whether the court erred “ in refusing to hear an application for continuance until the previous order had been complied with.”

If a question of this kind is reviewable on appeal, it seems to us to be settled adversely to appellant by the cases cited above. — -See, also, Morris v. Dortch, 1 Stew. 479. If the court had refused to allow appellant to file a plea or a trial by jury, then the case might have come within the influence of the decision in the case of M. & M. P. R. R. Co. v. Persse, Taylor & Co., supra.

It results that the judgment must be affirmed.