Chilton v. Gurganus

• Citation: 218 Ala. 145,117 So. 655
• Decision Date: 30 June 1928
• Docket Number: 6 Div. 66
• Parties: CHILTON v. GURGANUS et al.
• Court: Supreme Court of Alabama

117 So. 655

218 Ala. 145

CHILTON v. GURGANUS et al.

6 Div. 66

Supreme Court of Alabama

June 30, 1928

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Bill in equity by D.H. Chilton against M.A. Gurganus, Eithel Busler and Wilma Gurganus, and cross-bill by the two latter respondents. From the decree, complainant appeals. Affirmed.

Ray &amp Cooner, of Jasper, for appellant.

J.B Powell, of Jasper, for appellees.

SAYRE J.

A decree adjudicating the merits of this cause was filed and enrolled on May 4, 1923. On May 30, 1923, the guardian ad litem for one of the infant defendants filed his motion or petition for a rehearing on the record and facts not appearing of record, and on the same day the court entered an order setting down the motion for hearing on June 16, 1923. The next order is dated June 30, 1923, and purported to pass the motion to July 14, 1923, and on the last-mentioned date the motion was passed to August 4, 1923, when the rehearing was granted and the previous decree was set aside. The cause appears to have rested without further proceedings until April 27, 1927, when the minor defendants--there were two of them--amended their previous answer making it a cross-bill. May 6, 1927, appellant demurred to the cross-bill. Thereafter appellant answered the cross-bill, the cause was again submitted for final decree, and June 30, 1927, the decree brought under review by this appeal was rendered.

Appellant insists upon but one point, viz. more than 30 days having elapsed between the order of May 30, 1923, and that of June 30, 1923--the court having taken no action on June 16th--the court thereafter was without power or jurisdiction to make the order of June 30th or render further decrees.

Section 6636, brought into the Code from the Act of March 17th, 1915 p. 135, provides:

"The circuit court, when exercising equity jurisdiction, shall always be open for the transaction of any business therein, but the court shall not have the power to open or set aside any final decree after the lapse of thirty days from the date of its rendition."

At a later day, September 22, 1915, page 707, § 3, the Legislature enacted the law now stated in section 6670 of the Code in this language:

"After the lapse of ten days from the rendition of a judgment or decree, the plaintiff may have execution issued thereon, and after the lapse of thirty days from the date on which a judgment or decree was rendered, the courts 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 last-quoted section, being of later date, must now be accepted as a statement of the legislative will on the subject with which the two sections deal. The latter section controls "judgments" and "decrees," terms aptly used to designate the judicial determinations of the court in law and equity causes respectively, and concludes all matters within the field of its operation. Its proper interpretation must take into consideration Rule 81 of the Chancery Court (4 Code, p. 932) and the numerous decisions of this court on the subject-matter of...