Ex parte Phillips

• Decision Date: 14 November 1935
• Docket Number: 336,7 Div. 276
• Citation: 165 So. 80,231 Ala. 364
• Parties: Ex parte PHILLIPS. v. REAVES et al. PHILLIPS
• Court: Alabama Supreme Court

165 So. 80

231 Ala. 364

Ex parte PHILLIPS.

PHILLIPS v. REAVES et al.

7 Div. 276, 336

Supreme Court of Alabama

November 14, 1935

Rehearing Denied Jan. 16, 1936

Appeal from Circuit Court, St. Clair County; J.H. Disque, Jr. Judge.

Action under Homicide Act by Lexie Owens Phillips, as administratrix of the estate of Jackson Phillips, deceased, against H.E Reaves and others. From a judgment granting defendant's motion for a new trial, plaintiff appeals and applies for mandamus.

Mandamus denied; appeal dismissed.

Judicial powers cannot be conferred on court by parties' consent and judgment rendered on trial had pursuant to such consent is void.

This was an action by Lexie Owens Phillips, suing as administratrix of the estate of Jackson Phillips, deceased under the Homicide Act (Code 1923, § 5696), for the death of her intestate. When the case was finally submitted to the jury, there were three defendants, viz., H.E. Reaves and J.N. Adair, former partners, trading and doing business under the firm name of Reaves and Adair, and the Maryland Casualty Company, a corporation.

The trial resulted in a verdict for plaintiff on March 24, 1934, fixing her damages at $15,000, and judgment was duly entered thereon. The trial was held at Pell City, where by law a branch of the circuit court of St. Clair county is held. An office of the circuit clerk is maintained at Pell City, and was in charge of a deputy clerk.

On April 14, 1934, the defendants separately and severally filed motion for a new trial, based upon one hundred and eleven separate and several grounds. This motion was on the 14th day of April, 1934, duly presented to the trial judge at Gadsden, Ala., whereupon the following indorsement was made upon the motion:

"On this, the 14th day of April, 1934, came the parties, by their attorneys, and this motion is presented to the court and upon motion

"It is ordered and adjudged by the court that this motion be and the same is hereby continued to the 12th day of May, 1934, and execution on the judgment in this cause is ordered stayed pending the disposition of this motion.

"J.H. Disque, Jr., Judge."

The attorneys for plaintiff made an agreement with counsel for defendants with reference to the transcription of said motion upon the motion docket of said court, and this agreement was indorsed upon the original motion and is in the following language:

"We hereby consent for the foregoing motion to be spread upon the motion docket of the circuit court of St. Clair County, at Pell City, by posting the foregoing pages on said motion docket in lieu of said motion being written upon the pages of said motion docket. We waive any question of the motion having been presented to the trial judge at Gadsden, Alabama, instead of at Pell City, Alabama.

"This, the 17th day of April, 1934.

"D.G. Ewing

"Frank B. Embry,

"Attorneys for plaintiff."

This motion, with the order made thereon by the trial judge, and agreement of counsel for plaintiff, was carried to Pell City, Ala., by Hon. W.T. Starnes, and filed with the clerk of the circuit court on April 17, 1934; the filing being with Hon. J.L. North, deputy circuit clerk in charge of the office of the circuit clerk at Pell City. This fact was conceded at the hearing had on this motion, and the motion to enter a discontinuance of said motion for a new trial. Instead of pasting the pages of the motion, and the order of the trial judge thereon, together with the agreement of counsel, the deputy clerk with the aid of Mr. Starnes fastened the motion, with order and agreement indorsed thereon, to page 301 of the motion docket. The motion docket was a bound volume, not a loose-leaf book.

On May 11 or 12, 1934, Mr. Starnes, of counsel for defendant, detached the motion from the motion docket, and carried the same to Gadsden for the hearing on May 12th. On May 12, 1934, it appears from the statement of the trial judge incorporated in the record that said motion was argued "to the court at Gadsden, Alabama, by counsel for plaintiff and counsel for defendants, and on said date at said time and place the court took said motion under advisement and continued same to the 12th day of June, 1934, to enable counsel for defendants and counsel for plaintiff to file written brief for and against the motion." The order continuing the motion to June 12, 1934, was indorsed on the motion, and dated May 12, 1934, and to this order the trial judge affixed his name, "J.H. Disque, Jr., Judge." With this done, the motion, with the last-indorsed order, was returned to the deputy clerk at Pell City on May 12, 1934, and again was attached to the motion docket as theretofore.

On June 11, 1934, the motion was taken from the motion docket, and carried by counsel for defendants to Gadsden for the hearing. It also appears from said statement of the trial judge that, on the 12th of June, 1934, at the request of the plaintiff's counsel, a further order of continuance was entered upon said motion, continuing the same to June 30, 1934, to give plaintiff's counsel further time for filing reply brief. With this order indorsed thereon, the motion was returned to the clerk's office on June 12, 1934, and reaffixed to the motion docket.

On June 30, 1934, the motion was again detached from the motion docket and carried to Gadsden, and a further order of continuance was entered at the request of plaintiff's counsel, at least it so appears from the above-mentioned statement of the trial judge. This time the motion was continued to July 20, 1934, and therefore into another term of the court. It was then, on June 30, 1934, agreed between the court, and counsel for plaintiff and defendants, that Mr. Liles, of counsel for defendants, might keep the motion in his possession "until the next hearing, keep it in his safe." With reference to this, Mr. Starnes testified, and his testimony was uncontradicted: "I remember something that was said there about the custody of the motion, I think on June 30th, that some suggestion was made as to the safe keeping of the motion and you, Mr. Liles, suggested that you could carry it to your office and put it in your safe, and if I am not mistaken, Mr. Ewing or Embry (counsel for plaintiff) said that was all right and the judge said it would be safer there in your safe than it would be in his office, or something to that effect, I am not sure, *** but I do remember either Mr. Ewing, or Mr. Embry one, consented for the motion to be carried to your office and kept until the next hearing," which was set for July 30th.

It also appears from the said statement of the trial judge that on July 20, 1934, the plaintiff's counsel still not having filed a brief with the court, and requesting further time for filing same, an order of continuance was entered upon said motion, continuing the same until July 30, 1934. The orders of continuance of June 30th, and July 20th were in fact entered upon the original motion, which at that time had been detached from the motion docket, and said orders were made by the judge while in Gadsden, Ala. The said last two orders were not actually filed with the clerk until September 8, 1934.

On July 30, 1934, in open court, at Pell City, Ala., in the presence of counsel for plaintiff and counsel for defendants, plaintiff's counsel still not having filed a brief in said cause, the court announced that it would take said original motion to Gadsden for the purpose of considering the same, and thereupon, without objection being interposed by either counsel for plaintiff or counsel for defendants, an order was made continuing the said motion to August 10, 1934.

It further appears from the record:

"That on the 10th day of August, 1934, the court having the original motion in its possession and desiring further time for consideration and deliberation, continued the same to the 17th day of August, 1934, and entered an order of continuance thereon.

"On the 17th day of August, 1934, the court desiring further time for consideration of said motion, continued same to the first day of September, 1934, and entered the order on the original motion."

(None of the orders of continuance, down to and including the continuance of September 1, 1934, which were written on the motion, set forth the judge's reasons for the several continuances. The reason for entering the several continuances appear in the two statements of the trial judge filed in said cause, one on September 1, 1934, and one on September 8, 1934.)

"On the 1st day of September, 1934, the court still desiring further time for considering said motion continued the same to the 8th day of September, 1934, and made its order of continuance and affixed the same to the original motion.

"And now on this 8th day of September, the court still desiring further time for considering said motion, continues said motion to October 4, 1934, at Pell City, at 11 o'clock a.m."

The orders made on August 10 and 17, 1934, as well as the orders made on September 1 and September 8, 1934, were made by the trial judge at Gadsden, Ala., and were filed with the clerk on September 8, 1934.

On August 27, 1934, the plaintiff appearing specially for the purpose, and for no other or different purpose, filed in the cause a motion for a discontinuance to be entered of defendants' motion for a new trial in said cause.

This motion of the plaintiff was presented to, and called to the attention of, the court, and it was ordered that the same be set down for hearing on September 8, 1934.

On September 8, 1934, at Gadsden, Ala., the trial judge entered an order of continuance of the hearing of said motion to October 4, 1934, at the courthouse, in Pell City. This order of continuance was filed in the office of the clerk of the...