14 So. 2d 251 | Ala. | 1943
The appellant Pate was tried and convicted in the Circuit Court of Tuscaloosa County of manslaughter in the first degree. The judgment of conviction was entered on April 11, 1941. On May 9, 1941, he filed a motion for new trial, which, after the expiration of 30 days, beginning on and including April 12, was on May 16th, called to the court's attention and was by the court continued to a day certain. Thereafter said motion was continued from time to time until August 22, 1941, when it was without objection submitted to the court for decision, the solicitor and defendant's attorneys being present and participating. The court took the motion under advisement and entered an order continuing the same until September 5, 1941, on which date the court overruled the motion.
If the course of procedure stated quickened into exercise the court's jurisdiction and powers to set aside the judgment and grant a new trial, or was a waiver of noncompliance with the statute, § 119, Code 1940, Tit. 13, which provides inter alia, "after the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day;" the bill of exceptions was presented within time and on being signed by the presiding judge became a part of the record in the case, and the motion to strike was properly overruled.
On the other hand, if the proceedings outlined did not quicken into existence the jurisdiction and power of the court to set aside the judgment and grant a new trial, because of the absence of a special order of continuance made within thirty days from the rendition of the judgment of conviction, the proceedings concluding with the order overruling the motion were coram non judice and void, and did not suspend the finality of the judgment or the time for presenting a bill of exceptions. Merritt v. Carter,
It is familiar law, long since settled by our decisions, that when a common law court of general jurisdiction proceeds to a final judgment in a given case and adjourns for the term, or the term ends by expiration of the time fixed by law, jurisdiction over the controversy and the parties is exhausted, leaving the court only with power to control its process issued for the enforcement of the judgment, unless some step, authorized by statute is taken, to keep the proceedings in fieri. First National Bank of Birmingham v. Garrison,
Under our present statutory system the circuit court as a court of law as well as a court of equity remains open "for the transaction of any and all business, or judicial proceedings of every kind, at all times." Code 1940, Tit. 13, § 114. Hence the statute relating to the finality of judgment [Code 1940, Tit. 13, § 119] fixes thirty days, beginning on the day following the day on which each final judgment is rendered, as the term within *399
which the plenary power of the court over the judgment continues. Ex parte Howard (Howard v. Ridgeway et al.),
In the last cited case it was observed: "This court has heretofore fully considered the Act of February 28, 1889 (Acts 1888-89, p. 992), by which the city court of Birmingham was created, and has held that, under the words of that act, 'in order to give it (the motion) vitality at a subsequent term, and give the court power then to act on it, it must affirmatively appear from the record in the cause that the motion was made and called to the attention of the court, and continued during the term at which the judgment was rendered; otherwise the court is ever afterwards without power to entertain it.' Ex parte Highland Avenue Belt R. Co.,
The provisions of § 119, Code 1940, Tit. 13, quoted above, originated in the Act of September 22, 1915 [Acts 1915, p. 707], and in Mt. Vernon Woodbury Mills v. Judges of Fifteenth Circuit,
In that case the motion for new trial was made during the term and was on the last day of the term — October 21, 1916 — continued for 30 days. No further proceedings were taken in respect to this motion until January 8th, 1917, when it was overruled.
In dealing with these statutes in respect to the finality of judgments and the plenary power of the court to set aside and vacate them, the weight of our decisions is to the effect that if motion is not made during the term, and called to the attention of the court and continued to the next term or a future day, the power of the court to vacate or set aside the judgment is forever lost, and this loss of power cannot be waived. Hence further proceedings seeking to invoke the plenary power of the court to that end are coram non judice and void. Southern Ry. Co. v. Griffith,
On the other hand, if the court's jurisdiction is duly invoked in the mode prescribed by the statute, by motion made during the term — the thirty days — and continued to a future date certain, a hiatus in the proceeding, resulting from a failure to regularly continue the motion, may be waived by consent of the parties or by entering upon a hearing of the motion without objection.
Cases falling within the two classes were dealt with in Southern Ry. Co. v. Griffith, supra, and Patterson v. State, supra. In the first case it was said:
"The case of Birmingham Railway, Light Power Company v. Hinton,
"In the present case it is a question of the power of the court, and it is familiar law that after the adjournment of a term the judgments have passed beyond the power and control of the court, and no order or orders of the court thereafter can effect said judgment in any way save in the cases and mode prescribed by statute.
"The judgment of the court being void the appeal is dismissed."
And in the Patterson case: "The case is wholly different from those involving a waiver of a discontinuance of a motion duly made, wherein the jurisdiction of the court has attached, such as Greer et al. v. Heyer,
In the first class there is absence of jurisdiction and in the other a mere procedural irregularity in consequence of which a hiatus in the continuity of the procedure occurs, which is waivable, and when waived revives the court's power to act.
Cain v. Jefferson Standard Life Ins. Co.,
Greer et al. v. Heyer,
Neither Jones v. State,
The Court of Appeals stresses the dictum entered in the opinion of the court in Jones case that, "The statute — Section 6434 of the Code [Code 1940, Tit. 7, § 827] — is not mandatory upon us, nor are we otherwise under any imperative duty to strike the bill of exceptions in such cases. The matter is addressed to our sound discretion, to be wisely exercised in all cases. We may, or may not, strike the bill of exceptions, depending upon our conclusion as to whether or not a defendant's constitutional rights in a criminal case have or have not been secured to him.
"To refuse to strike a bill of exceptions in all cases, on motion of the attorney general (when the bill was not timely presented), will be a departure from our former holdings in such cases, but we are convinced that the relaxation of the rule in grave and important criminal cases, involving the constitutional rights of a defendant, will serve to promote the ends of justice. After all, courts are organized to administer justice without sale or denial."
This dictum was referred to in Rutherford v. State,
This dictum was superinduced, no doubt, by the decision rendered by the United States Supreme Court in Patterson v. Alabama,
No such question was presented in the instant case to the trial court or to the Court of Appeals, and on the undisputed facts affirmatively shown by the record the jurisdiction and power of the circuit court to entertain and grant or refuse the motion for new trial never attached, and having never existed, it cannot be revived by waiver.
The Court of Appeals, therefore, erred in overruling the motion of the state made by the attorney general, and the motion is here granted and the bill of exceptions is stricken from the record.
Without a bill of exceptions the other questions considered by the Court of Appeals were not presented for decision, and hence cannot be considered here. As to them we express no opinion.
Reversed, rendered and remanded to the Court of Appeals.
All the Justices concur.