Ex parte Adams

• Decision Date: 09 June 1927
• Docket Number: 6 Div. 896
• Citation: 216 Ala. 353,113 So. 513
• Parties: Ex parte ADAMS.
• Court: Alabama Supreme Court

113 So. 513

216 Ala. 353

Ex parte ADAMS.

6 Div. 896

Supreme Court of Alabama

June 9, 1927

Original petition of John H. Adams for a writ of mandamus to compel Hon. Richard V. Evans, as Judge of the Tenth Judicial Circuit, to correct an order pertaining to a motion for new trial. Mandamus denied.

J.R Adams, of Jacksonville, Fla., and W.A. Denson, of Birmingham for petitioner.

Horace C. Wilkinson, of Birmingham, for respondent.

BOULDIN J.

This is a mandamus proceeding directed to Hon. Richard V. Evans of the Tenth judicial circuit, seeking to correct an order pertaining to a motion for a new trial. The case made by the petition is briefly this:

Petitioner as plaintiff, recovered a judgment on October 21, 1926, against Alabama Lime & Stone Corporation. Within 30 days the defendant moved for a new trial. This motion was continued by regular orders until January 8, 1927. Thereafter the following memorandum orders were entered:

"Jan. 8/27. Passed to Jan. 15/27. Evans, J.

"Jan. 15/27. Passed to Jan. 22/27. Evans, J.

"Jan. 22/27. Argued, submitted, and taken under advisement. Evans, J.

"Feb. 7/27. Motion overruled. Novant excepts. Evans, J."

The order of January 22d, the petition alleged, was not entered on that date, nor was the cause argued, submitted, and taken under advisement on such date, but such order was in fact entered on January 29th and dated back to the 22d.

On February 14th petitioner filed in the circuit court two alternative motions with supporting affidavits, setting up the above facts and moving to strike the order of January 22d or to strike out the date thereof and insert January 29th, the true date.

These motions coming on for hearing February 19th, the defendant was granted leave, over plaintiff's objection, to file a counter motion alleging, in substance, that in fact the motion for a new trial was submitted on brief by movant and taken under advisement on January 8, 1927, and moving to correct the order of January 8th to show these facts, and to strike the further orders of January 15th and January 22d.

This motion of defendant was granted; an order entered correcting the record so as to show the motion for new trial was submitted and taken under advisement January 8, 1927. The motions of plaintiff were overruled because of correction so made on the motion of defendant. Exceptions were reserved to all these rulings.

All these proceedings are set out in the petition for mandamus filed in this court February 25, 1927. The prayer is for rule nisi directed to the judge, "requiring him to show cause why he should not correct the date of said order, changing the same to its true date, viz. January 29, 1927, so that said order shall read as follows:

" 'January 29, 1927. Argued, submitted, and taken under advisement. Evans, J.'; and, in the event he should so fail to do, a writ of peremptory mandamus should issue to him from out the Supreme Court of Alabama commanding him to make said change in said date of said order."

The return or answer of respondent to the rule nisi reaffirms, in substance, the facts as set up in defendant's motion, that the order of continuance of January 8th and later orders of January 15th and 22d were entered through inadvertence, and the correction order made February 19th, showing a submission of the motion for a new trial and taking it under advisement on January 8th made the record speak the truth. The answer incorporates a demurrer upon the ground that it appears from the petition plaintiff's remedy is by appeal from the order of February 19th, and that plaintiff is not entitled to the relief prayed.

The theory upon which the remedy of mandamus is sought is that the last effective order of continuance of the motion for a new trial was January 15th; that the motion was discontinued on January 22d for want of a further order of continuance; that the original judgment became final and passed from the control of the court on that date; that the order of February 7th overruling the motion for a new trial was therefore void, and cannot become the basis of assignments of error on appeal by defendant. Hence the writ of mandamus is sought to make the order of January 22d show its true date of entry, January 29th, after the motion had lapsed for want of a further order of continuance.

The petition as well as the return recognizes the rule that a motion for a new trial must be filed within 30 days after judgment, and, unless then heard, must be continued by special order entered within the 30-day period, and kept alive by successive orders of like kind until the hearing of the motion, and the further rule that, when the motion is heard, submitted, and taken under advisement, the motion does not lapse, and no further order of continuance is necessary unless its consideration is carried over to another term of the court. Mt. Vernon Woodbury Mills v. Judges, 200 Ala. 168, 75 So. 916; Ex parte Margart, 207 Ala. 604, 93 So. 505; Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 So. 641; Ex parte Schoel, 205 Ala. 248, 87 So. 801; Ex parte Doak, 188 Ala. 406, 66 So. 64; L. & N.R.R. v. Perkins, 152 Ala. 133, 44 So. 602; Greer v. Heyer (Ala.Sup.) 113 So. 14.

In passing upon the petition for mandamus, the return or answer of respondent, unless controverted, is to be taken as true. Ex parte Schoel, 205 Ala. 248, 87 So. 801; Ex parte Scudder, 120 Ala. 434, 25 So. 44.

The special and sole prayer of the petition...