ConAgra, Inc. v. Masterson

• Decision Date: 05 April 1973
• Citation: 276 So.2d 134,290 Ala. 273
• Parties: ConAGRA, INC., a corporation, and George William Miller v. John Keith MASTERSON. SC 89.
• Court: Alabama Supreme Court

Page 134

276 So.2d 134

290 Ala. 273

ConAGRA, INC., a corporation, and George William Miller v. John Keith MASTERSON.

SC 89.

Supreme Court of Alabama.

April 5, 1973.

Eyster, Eyster & Key, Decatur, for appellants.

W. H. Rogers, Moulton, for appellee.

BLOODWORTH, Justice.

This is an appeal by appellants (defendants below) from an order of the Circuit Court of Lawrence County, granting appellee's (plaintiff below) motion for a new trial. Alternatively, appellants-defendants seek to review the same action by petition for a writ of mandamus. (For convenience sake, we shall hereafter refer to the parties as plaintiff and defendants.)

The action is a personal injury suit for damages, arising out of a collision between a car driven by plaintiff, John Keith Masterson, and a truck driven by defendant, George William Miller, and belonging to defendant, ConAgra, Inc. The collision occurred on the Courtland-Russellville Road in Lawrence County. At the conclusion of the trial, the jury returned a verdict for defendants. Thereafter, the trial court granted plaintiff's motion for a new trial. There are twelve grounds assigned in the motion for a new trial. The trial court did not specify on which of the grounds it granted the new trial.

I. Mandamus

In their petition for mandamus, defendants aver: that on May 24, 1972, the jury returned a verdict in their favor and that judgment was entered accordingly; that on June 23, 1972, plaintiff filed his motion for a new trial, which was continued by the court for hearing on July 12, 1972; that on July 15, 1972, the motion for new trial was granted; that on August 18, 1972, defendants filed notice of appeal, and gave security for costs of appeal, from the judgment and order of July 15, 1972, which granted the motion for new trial.

Defendants further aver, in their petition: that as of the date of the taking of the appeal, there had been no order filed with the Circuit Clerk of Lawrence County, indicating that the motion for new trial was heard on or before July 12, 1972; that there were no orders in the records or minutes of the court continuing the motion beyond July 12, 1972; that at some point in time after August 18, 1972, an entry was made on the bench notes as follows, '7/12/72 Motion for a new trial heard and taken under submission-BB;' that pursuant to said bench note, a minute entry was prepared by the circuit clerk which appears in the transcript dated 'July 12, 1972,' though it is averred that the minute entry was made subsequent to August 18, 1972. Defendants incorporate by reference in their petition for mandamus the transcript of the record on appeal.

Defendants aver they are not certain whether the order granting the new trial is such an order as will support an appeal, but defendants opine that the Circuit Court of Lawrence County was without power or jurisdiction to enter the order because of a discontinuance, and that such order can be reviewed only by mandamus. They pray that this court take jurisdiction and issue a writ of mandamus to the Honorable Billy C. Burney, as Judge of the Circuit Court of Lawrence County, ordering him to set aside his order granting a new trial, or, in the alternative, to grant to petitioners a rule nisi requiring Judge Burney to show cause why the order should not be vacated.

On the other hand, plaintiff contends that where the motion is duly heard, submitted and taken under advisement by pronouncement of the trial court in open court, it is not necessary that the pronouncement be placed in the minute entry at that time, because the entry of the pronouncement is a ministerial function which can be performed later. Also, plaintiff contends that there is a minute entry in the record, reflecting that the motion was taken under advisement by the court, and this prevents a discontinuance.

Following are the orders referred to, each of which is found in the transcript of the record, viz:

'ORDER

'Upon consideration of the aforegoing, (motion for new trial) this motion is set for hearing on the 12th day of July, 1972, at 11:30 A.M.

'Done this the 23rd day of June, 1972.

Billy C. Burney

BILLY C. BURNEY,

CIRCUIT JUDGE'

'MINUTE ENTRY ON MOTION FOR NEW TRIAL

July 12, 1972

'This day in open court came the parties with their attorneys, and the motion of the plaintiff to set aside the verdict of the Jury and the judgment entered thereon, filed June 23, 1972 being regulary set for this day, the Court having heard the evidence and the arguments of the attorneys, advises the parties and their attorneys that the motion to set aside the judgment and verdict of the Jury is submitted to the Court and taken under advisement by the Court.'

'ORDER

'This cause submitted to the Court on the motion of the Plaintiff to set aside the verdict of the jury and the judgment entered thereon, and to grant the plaintiff a new trial, and setting out twelve (12) separate grounds. The Court, after hearing argument on said motion and after consideration of all grounds, is of the opinion that the verdict of the jury should be set aside and that the plaintiff be granted a new trial herein.

'It is, THEREFORE, ORDERED AND ADJUDGED by the Court that the verdict of the jury heretofore rendered in this and the judgment entered thereon be set aside and held for naught and that the plaintiff be given a new trial in this matter.

'DONE AND ORDERED this 15th day of July, 1972.

Billy C. Burney

Billy C. Burney, Circuit Judge.

FILED IN THIS OFFICE THIS THE 15th DAY OF JULY, 1972.

Ernest Shelton

Clerk'

These orders clearly establish that the motion for new trial was timely filed on June 23, 1972, set for hearing on July 12, 1972, and on that date, in the presence of the parties and their attorneys, submitted to the trial judge, who thereupon took the same under advisement. Thus, according to the record, there was no discontinuance effected as contended for by defendants.

This court has many times stated the rules governing discontinuances and the need for keeping alive motions for new trials by timely continuances or other orders of submission.

'In the recent case of Greer v. Heyer, 216 Ala. 229, 113 So. 14, we have held that, when a motion for new trial in a case at law is actually heard and taken under advisement, the motion does not lapse for failure to enter an order of submission at the time; that the hearing and consideration is one continuous proceeding, and a recital in the judgment granting or overruling the motion showing that the motion was heard and taken under consideration on a date to which it was regularly continued is sufficient--this though its consideration exceeds 30 days. * * *' Ex Parte Adams, 216 Ala. 353, 113 So. 513 (1927).

'We are, therefore, at the conclusion that up to and including the order of the trial judge made in open court, in the presence of counsel for the respective parties on July 30, 1934, there had occurred no grounds for a discontinuance of the motion for a new trial; that the pronouncement made from the bench by the trial judge in open court on July 30, 1934, in the presence of respective counsel for the respective parties, and without objection from them, effected to pass said motion into the breast of the court, and continued in life said motion until, in open court on October 4, 1934, in the presence of counsel for the respective parties, the court made and entered its decision on said motion. * * *' Ex Parte Phillips, 231 Ala. 364, 165 So. 80 (1935).

'The undisputed recitation by the trial court, supra, that the motion was heard on the appointed date, July 9, 1962, and taken under consideration, we take to be true. When the motion was heard and submitted as stated by the trial court, the issue presented was in the breast of the court until September 12, 1962, when a judgment on the motion was duly entered.

'Under such circumstances as the record here presents a written order of submission of the motion for consideration or advisement on the part of the court at the time of submission, although advisable for clarity of the record, was not necessary to preserve the integrity or life of the motion. Nor was an order of continuance necessary. * * *' Holman v. Baker, 277 Ala. 310, 169 So.2d 429 (1964).

'* * * The motion or application, when submitted on the date to which it is continued as authorized in § 119, (Tit. 13) is in the breast of the court and no further continuance is necessary to suspend the finality of the original judgment or decree. But the record must contain some showing or statement of submission. Greer v. Heyer, 216 Ala. 229, 113 So. 14; Shelley v. Clark, 267 Ala. 621, 103 So.2d 743; Holman v. Baker, 277 Ala. 310, 318, 169 So.2d 429, on rehearing, paragraph (10, 11).

'The instant record contains no showing or statement of submission, or order of continuance, made prior to or on April 3, 1964, which is the latest date to which the hearing on the applications was regularly continued. Because of the absence of such a proper showing or order of continuance, the applications were discontinued after April 3, 1964. * * *' Moving Picture Machine Op. Local No. 236 v. Cayson, 281 Ala. 468, 205 So.2d 222 (1967).

Defendants aver, in their petition for mandamus, that on the day the appeal was taken, August 18, 1972, the minute entry was not of record but that it was made by the clerk, pursuant to an entry by the trial judge on the docket sheet, subsequent to the date of appeal. They attach an affidavit from the circuit clerk to support this allegation.

There are several answers to this contention. In the first place, defendants themselves, on submission of this cause in this court, conceded that the trial judge did take the motion for new trial under submission on July 12, 1972, as the minute entry states. They do not controvert the truth of the matters set out in the minute entry but contend that it was not timely entered of record.

The rule in this jurisdiction is clear that the submission and taking of the new trial...