Ex parte Schoel

• Decision Date: 20 January 1921
• Docket Number: 6 Div. 128
• Citation: 87 So. 801,205 Ala. 248
• Parties: Ex parte SCHOEL.
• Court: Alabama Supreme Court

87 So. 801

205 Ala. 248

Ex parte SCHOEL.

6 Div. 128

Supreme Court of Alabama

January 20, 1921

Petition by Mrs. Lizzie E. Schoel for mandamus to be directed to Hon Henry B. Foster, as Judge of the Sixth judicial circuit requiring him to vacate and annul an order or decree granting a motion for new trial in the case of Lizzie E. Schoel against the United Order of the Golden Cross. Writ denied.

Wright & Bealle, of Tuscaloosa, for appellant.

Foster Verner & Rice, of Tuscaloosa, for appellee.

McCLELLAN J.

Petition for writ of mandamus to require the judge of the circuit court of Tuscaloosa county to vacate and annul the order under date of June 4, 1920, granting defendant's motion for new trial in the cause of Elizabeth E. Schoel (petitioner in the present proceeding) against the United Order of the Golden Cross, and to declare such order or judgment a nullity.

The theory, in primary substance, of the petition is that because of the want of efficient orders of continuance of the motion for new trial, the circuit court was without power to consider the motion.

The answer of the circuit judge, in response to rule nisi, not being controverted (Code, § 4865), its statements, etc., must be taken as true. Ex parte Scudder, 120 Ala. 434, 436, 25 So. 44.

By appearing and unreservedly contesting the merits of the motion for new trial on June 2, 1920, the petitioner (plaintiff in the judgment in the circuit court) waived any right to claim a discontinuance consequent upon the absence (if so) of effective orders of continuance of the motion. McCarver v. Herzberg, 135 Ala. 542, 544, 33 So. 486; Shipp v. Shelton, 193 Ala. 658, 662, 69 So. 102, among others.

From the answer of the circuit judge it appears that, upon the conclusion of the hearing on June 2, 1920, "the circuit judge stated and ordered from the bench that the motion be continued under advisement for decision Friday, June 4, 1920 but did not at that time make in writing on the motion docket any entry of any kind. The court did, however, state and order from the bench on the said June 2, 1920, that the motion would be continued for decision to Friday, June 4, 1920. On Friday, June 4, 1920, the trial judge, in open court, in pursuance of its order theretofore made on June 2, 1920, announced its ruling granting the defendant's motion for a new trial, and at that time made formal entry, in writing, of the order made on June 2, 1920, as above, and...