Ex parte James

• Citation: 28 So. 69,125 Ala. 119
• Parties: EX PARTE JAMES.
• Decision Date: 15 May 1900
• Court: Supreme Court of Alabama

28 So. 69

125 Ala. 119

EX PARTE JAMES.

Supreme Court of Alabama

May 15, 1900

Petition by L. D. James for a writ of mandamus to compel the city court of Birmingham to set aside an order refusing to entertain a motion made by petitioner. Writ denied.

B. M Allen, for petitioner.

Perdue & Cole, for defendant.

TYSON J.

Section 20 of the act approved February 28, 1889 (Acts 1888-89, p 1000), entitled "An act to amend an act entitled an act to establish the city court of Birmingham, approved December 9, 1884," provides "that final judgments 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 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 rehearing 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." On the 8th day of December, 1899, the presiding judge of the city court rendered a judgment dismissing a suit brought by this petitioner against the Shady Grove Baptist Church, for want of prosecution. On the 3d day of January, 1900, the petitioner filed a motion in said city court to set aside this judgment. On the 6th day of January, 1900, written notice of the motion and the affidavits filed in support of it was served upon the attorney of record for the defendant. On the 8th day of January, 1900, the motion was presented to the court for consideration. It was not until this latter date that the motion was brought to the attention of the court. On the objection of the defendant the court declined to consider it, upon the ground that more than 30 days had elapsed since the rendition of the judgment of dismissal.

If 30 days had elapsed, there can be no serious doubt but that the court had no jurisdiction to disturb the judgment upon any of the grounds...