Colburn v. State, 6 Div. 697
| Court | Alabama Court of Appeals |
| Writing for the Court | HARWOOD |
| Citation | 112 So.2d 800,40 Ala.App. 248 |
| Parties | Wallace COLBURN v. STATE. |
| Docket Number | 6 Div. 697 |
| Decision Date | 17 March 1959 |
Page 800
v.
STATE.
Rehearing Denied April 7, 1959.
Page 801
[40 Ala.App. 249] T. K. Selman and Hugh Beaird, Jasper, for appellant.
MacDonald Gallion, Atty. Gen., and Jerry L. Coe, Asst. Atty. Gen., for the State.
HARWOOD, Presiding Judge.
The Attorney General has filed a motion to strike the transcript of the evidence because not timely filed with the clerk below, and an alternative motion to strike the entire record and dismiss this appeal because the entire record was not filed in this court within the time required by law.
A judgment of conviction of murder in the second degree was entered against the appellant on 29 August 1958, and notice of appeal was given on that same day.
On 1 September 1958 a motion for a new trial was presented to the Honorable Bob Moore, Jr., judge of the Twenty-Fifth Judicial Circuit, who presided at the trial below, and the following order appears in the record in this connection:
'The foregoing motion for a new trial in the case of State of Alabama vs. Wallace Colburn, having this day been presented to me and same being read and considered; It is the Judgment and Order of this Court that the Motion for a new trial be continued and set for a hearing on the 8th day of October, 1958.
'This the lst day of September, 1958.
'Bob Moore, Jr.,
Judge'
On 8 October 1958 an order was entered denying the motion for a new trial.
However, it further appears that the motion for a new trial, and the above order of Judge Moore of 1 September 1958 setting the hearing on the motion was not filed with the circuit clerk until 10 October 1958.
Page 802
If the order overruling the motion was void and of no effect because the motion for a new trial was not filed with the clerk within thirty days of the rendition of the judgment, then the motion of the Attorney General is well taken and must be granted.
Section 119, Title 13, Code of Alabama 1940, provides in pertinent parts: 'and after the lapse of thirty days from the date on which a judgment * * * was rendered, the court shall lose all power over it * * * unless a motion to * * * 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; provided that in any county in which the trial judge did not reside on the date of the trial such motion may be filed in the office of the clerk * * * of the court of the county having jurisdiction of said cause, within thirty days from the date of the rendition of the judgment * * * and the court shall lose all power over it sixty days after the date of the rendition of such judgment * * * unless such motion is called to the attention of the court and an order entered continuing it for hearing to a future date.'
However, in case of a nonresident judge, Section 119, supra, does not extend the time for filing a motion for a new trial. Esdale v. State, 37 Ala.App. 48, 68 So.2d 512.
In Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 26 Ala.App. 136, 155 So. 710, the trial judge, a resident of Lee County, had made timely orders continuing the hearing on a motion for a new trial in a case tried in Tallapoosa County, within his judicial circuit. None of these orders was filed with the clerk in Tallapoosa County, nor entered in the minutes within the time such orders were due to be made, but were filed afterwards.
On appeal this court held that the orders of the trial judge continuing the motion made in a county other than the county of [40 Ala.App. 250] trial and not filed with the...
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Lucy v. State, 1 Div. 674
...record. Williams v. State, 52 Ala.App. 207, 290 So.2d 668 (1973), Cert. denied, 292 Ala. 758, 290 So.2d 672 (1974); Colburn v. State, 40 Ala.App. 248, 112 So.2d 800, cert. denied, 269 Ala. 694, 112 So.2d 804 Butler, supra, concerned circumstances similar to those in the present case. The at......
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Blackford v. Hall Motor Exp., Inc., 6 Div. 674
...to a filing with the clerk.--Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 155 So. 716; Colburn v. State, 40 Ala.App. 248, 112 So.2d The cases last cited did not deal with the filing of objections to a transcript of evidence, but with the filing of motions for new tria......
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Worrell v. State, 4 Div. 582
...558, 280 So.2d 831; Strong v. State, 47 Ala.App. 238, 252 So.2d 659; Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Colburn v. State, 40 Ala.App. 248, 112 So.2d 800. Based on this fact we cannot assume that case No. 6383 was nol prossed. II Nothing in the record indicates that the circuit c......
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Tyus v. State, 6 Div. 431
...bound by the record and such record may not be impeached by affidavits, or otherwise, by matters outside the record. Colburn v. State, 40 Ala.App. 248, 112 So.2d 800, cert. denied, 269 Ala. 694, 112 So.2d 804 (1959). Thus we are bound by the stipulations of fact as found and determined by t......
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Lucy v. State, 1 Div. 674
...record. Williams v. State, 52 Ala.App. 207, 290 So.2d 668 (1973), Cert. denied, 292 Ala. 758, 290 So.2d 672 (1974); Colburn v. State, 40 Ala.App. 248, 112 So.2d 800, cert. denied, 269 Ala. 694, 112 So.2d 804 Butler, supra, concerned circumstances similar to those in the present case. The at......
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Blackford v. Hall Motor Exp., Inc., 6 Div. 674
...to a filing with the clerk.--Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 155 So. 716; Colburn v. State, 40 Ala.App. 248, 112 So.2d The cases last cited did not deal with the filing of objections to a transcript of evidence, but with the filing of motions for new tria......
-
Worrell v. State, 4 Div. 582
...558, 280 So.2d 831; Strong v. State, 47 Ala.App. 238, 252 So.2d 659; Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Colburn v. State, 40 Ala.App. 248, 112 So.2d 800. Based on this fact we cannot assume that case No. 6383 was nol prossed. II Nothing in the record indicates that the circuit c......
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Tyus v. State, 6 Div. 431
...bound by the record and such record may not be impeached by affidavits, or otherwise, by matters outside the record. Colburn v. State, 40 Ala.App. 248, 112 So.2d 800, cert. denied, 269 Ala. 694, 112 So.2d 804 (1959). Thus we are bound by the stipulations of fact as found and determined by t......