Brown v. State, 7 Div. 652
| Citation | 277 Ala. 108,167 So.2d 291 |
| Decision Date | 03 September 1964 |
| Docket Number | 7 Div. 652 |
| Parties | Ruth BROWN v. STATE of Alabama. |
| Court | Supreme Court of Alabama |
Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for petitioner.
Loma B. Beaty, Fort Payne, opposed.
The state applies for certiorari to review a decision of the Court of Appeals wherein that court reversed a judgment of conviction and rendered a judgment discharging the defendant in a prosecution for illegal possession of prohibited liquors.
Endorsements on the record indicate that, in the Court of Appeals, on November 12, 1963, the record was stricken and the appeal was dismissed; that on November 27, 1963, the Court of Appeals, on its own motion, placed the cause on rehearing; and that on April 7, 1964, the Court of Appeals reversed the judgment of the trial court and rendered the judgment discharging defendant.
The state complains of the decision of the Court of Appeals in two particulars, the first complaint being as follows:
'* * * the Court of Appeals erred in said cause in its action in ex mero motu placing the case on rehearing after having stricken the case and dismissing the appeal, and restoring the case to the docket, vacating the original opinion and considering the cause as newly submitted without notice of such action nor affording the Appellee an opportunity of filing a Brief and Argument in response thereto.'
A cause may be placed on rehearing, during the term in which decision was rendered, by a justice of the Supreme Court. Alabama Co. v. Brown, 207 Ala. 18, 25, 92 So. 490; Myers v. Moorer, 273 Ala. 18, 134 So.2d 168. It would appear that such justice should be one who was of the majority on original deliverance. In the absence of statute, it is generally held that the power of an appellate court over its judgments, like that of courts generally, persists to the end of the term at which the judgment is rendered. Chapman v. St. Stephens Episcopal Church, 105 Fla. 683, 138 So. 630, 84 A.L.R. 566. To hold to the contrary would be to declare that the appellate court has power to correct the errors of all other tribunals of the government while faithfully adhering to and perpetuating its own. Chapman, supra.
While the supreme court has the power of superintendence and control over decisions of the Court of Appeals; Section 140, Constitution of 1901; Ex parte Louisville & Nashville R. R. Co., 176 Ala. 631, 58 So. 315; the latter court 'shall have final appellate jurisdiction * * * of all misdemeanors * * * and all felonies, where the punishment has been fixed at twenty years or under,' § 86, Title 13, Code 1940; and 'Appeals to said court shall be taken * * * with the effect and subject to the limitations and restrictions * * * provided by law with respect to appeals to the supreme court and the rules * * * obtaining with respect to applications for rehearings in the supreme court shall apply to said court of appeals.' § 90, Title 13, Code 1940.
With respect to causes within the jurisdiction of the Court of Appeals, that court has the same power to grant rehearings as does the Supreme Court.
The state recognizes the stated rule but insists that the Court of Appeals erred in vacating its original decision and rendering the decision here complained of without giving to the state 'notice of the pendency of such rehearing and an opportunity to be heard or to file briefs and arguments relating to such action.' In short, the state argues that we should reverse the Court of Appeals because it failed to notify the state that the cause had been placed on rehearing ex mero motu.
We incline to the view that, when an appellate court, on its own motion, places a cause on rehearing, the better practice, in most cases generally, is to notify the parties and afford them reasonable opportunity to file briefs if they desire so to do. On the other hand, we know of no statute or rule, and are cited to none, which requires this court or the Court of Appeals to give such notice as a condition precedent to granting a rehearing on its own motion and reversing its own decision. The parties are not denied the right to be heard because they have already had that right prior to original submission of the appeal.
On this reasoning, we are of opinion that the state's first complaint...
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