Ex parte Howard

• Decision Date: 26 May 1932
• Docket Number: 6 Div. 995.
• Citation: 142 So. 403,225 Ala. 106
• Parties: EX PARTE HOWARD. v. RIDGEWAY ET AL. HOWARD
• Court: Alabama Supreme Court

142 So. 403

225 Ala. 106

EX PARTE HOWARD.

HOWARD v. RIDGEWAY ET AL.

6 Div. 995.

Supreme Court of Alabama

May 26, 1932

Original petition of J. H. Howard for mandamus to Hon. Jas. E. Horton as Judge of the Circuit Court, Cullman County.

Mandamus denied; petition dismissed.

W Marvin Scott, of Cullman, for petitioner.

Jas. E Horton, of Athens, for respondents.

BROWN J.

This is an original application to this court for the issuance of a writ of mandamus to require the respondent, Hon. James E Horton, one of the judges of the Eighth judicial circuit, to vacate an order entered by him in the case of the petitioner, Howard, as complainant, against A. T. Ridgeway et al., setting aside the final decree in said case on the application of the defendants, and restoring the same to the equity docket.

The final decree was entered on the 22d day of June, 1931, and the petition for rehearing was filed on July 14, 1931, and after notice to the petitioner, who appeared and contested the same, was heard and granted on July 20, 1931.

The grounds of the petition for rehearing were that the final decree was predicated on a decree pro confesso, which was improvidently granted because the respondents had appeared before said decree pro confesso was entered and filed a demurrer to the bill; that the complainant had amended his bill after service of process and before answer filed, and had failed to give the respondents notice of such amendment, rendering the decree irregular and erroneous.

We are not concerned with the merits of the petition for rehearing or the grounds impelling the chancellor to grant the same. The sole contention of the petitioner here is that the term of the court at which the final decree was rendered expired by operation of law on the 27th day of June, 1931, being the last Saturday in that month (Code 1923, § 6667); therefore, there was an absence of power in the circuit court sitting in equity, or the judge thereof sitting as chancellor, to vacate the final decree.

The rule of our decisions is that, by the expiration of the term at which judgment is rendered in common-law actions, the plenary jurisdiction of the circuit court to modify, set aside, or vacate the same is lost, and the statute, section 6670 of the Code, providing that "after the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day," is without virtue to preserve such jurisdiction and control, unless motion is made before the expiration of the term, and duly continued and heard without lapse in the continuity of the proceedings. Morris v. Corona Coal Company, 215 Ala. 47, 109 So. 278; Ex parte Fidelity & Deposit Company of Maryland, 223 Ala. 98, 134 So. 861; Ex parte Dayton Rubber Mfg. Co., 219 Ala. 482, 122 So. 643; Ex parte Brickell, Judge, 204 Ala. 441, 86 So. 1.

This rule has been applied to an "issue out of chancery" in cases wherein the parties are entitled, as matter of right, to a trial of the issues by jury, as contradistinguished from cases wherein the trial by jury and the verdict are merely advisory. Lewis v. Martin, 210 Ala. 401, 98 So. 635.

In such cases the trial of the issues by jury partake of the essence of a trial at law, and motion to set aside the verdict and award a trial de novo is essential to a review by the chancellor of the rulings on the trial of the issues before the jury. Karter v. East et al., 220 Ala. 511, 125 So. 655; Hale et al. v. Cox, 222 Ala. 136, 131 So. 233.

While in treating the questions presented in Engle v. Bronaugh, 208 Ala. 162, 93 So. 868, 869, a suit in equity, it was incidentally stated that "court adjourned by operation of law at midnight, the last Saturday in June, 1921, and no motion had been made to set aside the decree," the point decided and the ground for decision was that the appellant, by his failure to file exceptions to the report of the receiver as required by rule 94 of Chancery Practice, had waived his right to have the decree vacated on motion, and not that the court was without jurisdiction to vacate the order. The pertinent observation was: "When the defendant admits he had notice of the filing and a copy of the receiver's report on the 9th or 10th of June, 1921, before it was confirmed, and did not object to its confirmation and waited until after the court adjourned and until July 9, 1921, nearly 30 days after the report was confirmed, to file exceptions to it and to file motion to set the decree of confirmation aside, the court will not be put in error for refusing to grant his motion or petition. The defendant had waived his right to object and except to its confirmation"-citing Gerald v. Miller, 21 Ala. 436; rule 94, Chancery Practice, p. 1557, vol. 2, Code 1907; Taunton v. McInnish, 46 Ala. 619, and other cases dealing with the question of waiver. (Italics supplied.)

This cannot be construed as holding that the trial court had lost its control over the decree. Moreover, the utterances in that case are mere dictum as the matter therein complained of was within the unrevisable discretion of the trial court. Cox v. Brown, 198 Ala. 638, 73 So. 964.

Section 6636 of chapter 267 of the...