Ex parte Drivers, Inc., 5 Div. 864.

• Decision Date: 15 December 1931
• Docket Number: 5 Div. 864.
• Citation: 138 So. 427,24 Ala.App. 557
• Parties: EX PARTE DRIVERS, INC. v. DRIVERS, INC. HORNE
• Court: Alabama Court of Appeals

138 So. 427

24 Ala.App. 557

EX PARTE DRIVERS, INC.

HORNE v. DRIVERS, INC.

5 Div. 864.

Court of Appeals of Alabama

December 15, 1931

Petition for Mandamus.

Original petition of Drivers Incorporated for mandamus to Hon. W. B Bowling, as Judge of the Fifth Judicial Circuit.

Writ denied.

Paul J Hooton, of Roanoke, for petitioner.

W. B Bowling, of Dadeville, for respondent.

BRICKEN P.J.

Petitioner Drivers Incorporated, a corporation, defendant in the court below, in above proceeding, filed petition for a writ of mandamus to require the Honorable William B. Bowling, associate judge of the Randolph circuit court, to vacate and annul an order entered by him as such judge on September 19, 1931, wherein the motion for new trial by plaintiff was granted and the verdict of the jury was set aside and the cause restored to docket. By the petition it is insisted that the court had lost control over the original judgment in this case, supra, and that said judgment had become final for failure to keep alive the plaintiff's motion for a new trial by proper orders of continuance, under Code 1923, § 6670. This is the sole question presented.

It is without dispute that the original judgment in question was rendered against petitioner on the 18th day of August 1931. It also appears from the petition and answer of respondent that on August 19, 1931, plaintiff filed motion to set aside the verdict and judgment, and for a new trial; that said motion was set for hearing on August 20, 1931, and on that date was continued to August 26, 1931; that on August 26, 1931, the motion was again continued by the court until September 5, 1931, to be heard at Lafayette, Ala.

In respondent's answer the following appears: "That on September 5, 1931, plaintiff's attorney and defendant's attorney appeared before the undersigned for hearing upon said motion, but due to other motions and oral arguments on other cases pending before the undersigned, the attorneys for the respective parties agreed to submit the motion upon written argument, to be taken under consideration by the undersigned; the defendant's attorney thereupon submitted to the undersigned his written brief and argument and plaintiff's attorney prepared his brief and argument in writing and delivered it to the undersigned by mail within the next two or three days. That the undersigned accepted the submission of said motion upon written brief and argument, on the 5th day of September, 1931, and within a...