Evett v. State

• Court: Alabama Court of Appeals
• Citation: Evett v. State, 29 Ala.App. 370, 196 So. 170 (Ala. App. 1940)
• Decision Date: 14 May 1940
• Docket Number: 8 Div. 985.
• Parties: EVETT v. STATE.

196 So. 170

29 Ala.App. 370

EVETT v. STATE.

8 Div. 985.

Court of Appeals of Alabama

May 14, 1940

Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.

Wheeler Evett was convicted of manslaughter in the first degree, and he appeals.

Affirmed.

H. T Foster, of Scottsboro, for appellant.

Thos S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty Gen., for the State.

RICE Judge.

It now appears that by the return to the writ of certiorari ordered in this case the corrected transcript shows an indictment in regular form against appellant. And that the proceedings leading to his conviction were in all respects conducted in the form prescribed by law.

It further affirmatively appears that he was convicted and sentenced on September 15, 1938; that his counsel filed a motion to set aside the verdict of the jury, and the judgment rendered thereon, on September 29, 1938; but that said motion was not noticed by the court until December 19, 1938, upon which date an order was entered continuing the motion to March 13, 1939. And that upon this latter date an order was made continuing said motion to September 11, 1939 when it was overruled and denied--defendant excepting.

It thus affirmatively appears that on December 19, 1938, when the purported order to continue said motion to March 13 1939--and thence on to September 11, 1939, when it was overruled--was made, the court had lost all power over said motion; and the said "order" was null, void, and of no effect. Code 1923, Sec. 6670. This is true because the Code section cited requires that in order for the trial court to retain jurisdiction over the judgment entered on September 15, 1938 beyond thirty days after that date, a motion for a new trial must not only be filed within that time--as was done in this case--but said motion must within that time be "called to the attention of the court and...