Ex parte Humes

• Decision Date: 04 June 1901
• Citation: 130 Ala. 201,30 So. 732
• Court: Alabama Supreme Court
• Parties: EX PARTE HUMES.

30 So. 732

130 Ala. 201

EX PARTE HUMES.

Supreme Court of Alabama

June 4, 1901

Application of E. C. Humes, administratrix, for a writ of mandamus directed to the judge of the circuit court of the Eighth judicial circuit. Writ denied.

This was a petition for a writ of mandamus to compel the judge of the circuit court to revoke an order entered during the spring term, 1900, of said court, for a writ of restitution commanding the sheriff to put the defendants in a certain case back into the possession of the land. It appears that at the October term, 1899, of said circuit court, plaintiff recovered a judgment against the defendants, and during that term the defendants duly made and entered upon the motion docket of said court a motion for a new trial, and upon said motion docket during said term the judge entered a memorandum to the effect that such motion was continued, and also announced during said term that the same would be continued. In making up the minutes of the court, the clerk failed to enter a formal order of continuance of said motion. After the adjournment of said term a writ of possession was issued under said judgment, and executed by putting defendants out of possession. At the spring term, 1900, of said court, on motion of defendants, the minutes of the court were amended nunc pro tunc so as to show a proper order of continuance on said motion for a new trial at the October term, 1899. After this an order was also entered at said spring term, 1900, for a writ of restitution directing the sheriff to put the defendants back into possession of the lands sued for pending the hearing of the motion for a new trial.

Humes Sheffey & Speake and Watts, Troy & Caffey, for petitioner.

S. A Lynne, J. R. Sample, and E. W. Godbey, for respondents.

TYSON J.

The right of the petitioner to the writ of mandamus is dependent solely upon the solution of the question whether there was a discontinuance of the motion for a new trial. If there was not, the writ must be denied. It appears from the respondents' answer and from a certified transcript of the motion docket upon which the motion for the new trial was entered that the motion was made at the term of the court at which the judgment was rendered, and was called to the attention of the presiding judge, who then and there continued it in open court, and at the same time made a memorandum of his order upon the margin of the motion docket opposite the style of the cause. It is true the clerk failed to enter upon the minutes of the court the order of continuance, and it is on account of the result of his failure or neglect in this respect that petitioner predicates her contention that the court lost its authority or jurisdiction to make the order for the restitution of the possession of the lands involved in the judgment, which the motion, if granted, would vacate. It cannot be doubted that, if the continuance of the motion had been entered upon the minutes of the court, the cause would have been in fieri, and the court would have had entire control of it, possessing the power to make any order at a subsequent term that may be proper. Barron v Barron, 122 Ala. 194, 25 So. 55, and authorities cited. In Bouvier's...