Ex parte Highland Ave. & B.R. Co.

• Decision Date: 05 February 1895
• Parties: EX PARTE HIGHLAND AVE. & B. R. CO.
• Court: Alabama Supreme Court

17 So. 182

105 Ala. 221

EX PARTE HIGHLAND AVE. & B. R. CO.

Supreme Court of Alabama

February 5, 1895

Petition by the Highland Avenue & Belt Railroad Company for a writ of mandamus compelling Hon. H. A. Sharpe, judge of the city court of Birmingham, to hear and pass upon petitioner's motion for a new trial. Writ denied.

The Highland Avenue & Belt Railroad Company filed its petition addressed to the judges of the supreme court, in which it alleged that on October 12, 1894, James W. Fennell recovered a judgment against the petitioner in the city court of Birmingham, in a cause then pending in said city court, in which James W. Fennell was plaintiff, and the Highland Avenue & Belt Railroad Company was defendant; that on November 12 1894, the petitioner entered a motion on the motion docket of said court for a new trial, and that on November 19, 1894 "which was the first regular motion day of said court after the motion was entered on said docket," the petitioner called up said motion and asked the presiding judge of said court to pass upon and dispose of the same; "but counsel for the plaintiff not being present, and no personal notice having been given him, the judge of said court passed the same until the next motion day of said court; that thereafter, to wit, on November 26, 1894, the said motion was called to the attention of the judge presiding," but the judge refused to hear said motion, for the reasons stated in an order entered on the motion docket, which was in words and figures as follows: "November 26th, 1894: It appearing to the court that after the trial of the cause mentioned in the foregoing motion, and since the rendition of the judgment therein, more than thirty days had elapsed before said motion was presented to the court, and also before notice thereof was given to the plaintiff, wherefore the court is without power to set aside said judgment for the grounds set forth in said motion: The court therefore declines to hear said motion upon its merits, but for the reason stated the same is hereby dismissed. H. A. Sharpe, Judge," etc. Upon these averments contained in the petition, the petitioner prayed to have a writ of mandamus issued from the supreme court to the judge of the city court of Birmingham, "directing and commanding him to hear, consider and pass upon the application or petition for a new trial."

Alex. T. London, for petitioner.

Lane & White, for respondent.

HARALSON J.

The twentieth section of the act to amend the act establishing the city court of Birmingham, approved 28th February, 1889 (Acts 1888-89, p. 1000), provides, "that final judgment and decrees rendered in said court shall, after the expiration of thirty days from their rendition, be taken and deemed as completely beyond the control of the court, as if the term of said court at which said judgments and decrees are rendered, had ended, at the end of said thirty days provided, however, that nothing herein contained shall prevent parties from applying for new trials or rehearings within said thirty days, or destroy or change the effect of motions for new trials or rehearings when so made, or shall prevent parties from applying to said court for a rehearing under the statute authorizing applications for rehearings in the circuit court, or shall prevent the court from retrying any cause under section 2871 of the Code of Alabama, or shall prevent the court from the exercise of any power or jurisdiction conferred upon the circuit court touching final judgments, or the chancery court touching final decrees." Unless an application for a...