Ex parte Smith

• Decision Date: 11 January 1934
• Docket Number: 6 Div. 475.
• Citation: 228 Ala. 232,153 So. 152
• Parties: Ex parte SMITH. v. CITY OF BIRMINGHAM. SMITH
• Court: Alabama Supreme Court

153 So. 152

228 Ala. 232

Ex parte SMITH.

SMITH v. CITY OF BIRMINGHAM.

6 Div. 475.

Supreme Court of Alabama

January 11, 1934

Rehearing Denied March 15, 1934.

Original petition of Lela Smith for mandamus to Hon. Paul Speake, as Special Judge of the Circuit Court of Jefferson County requiring him to vacate an order of September 9, 1933 holding the order of January 14th to have become absolute.

Writ denied.

Taylor & Higgins and Chas. W. Greer, all of Birmingham, for petitioner.

W. J Wynn and T. A. McFarland, both of Birmingham, for respondent.

GARDNER Justice.

Petitioner on November 3, 1932, recovered in the Jefferson circuit court a judgment against the city of Birmingham in the sum of $5,000. On November 17, 1932, the defendant filed motion for a new trial, which was duly presented to the special presiding judge, and by him continued to December 10, 1932 upon which date the motion was submitted by agreement of counsel on written briefs and taken under advisement. Thereafter, on January 14, 1933, the presiding judge entered in said cause the following order:

"On this the 14th day of January, 1933, came the parties by their attorneys, and this motion having been submitted to the court, and the same having been fully considered and understood by the court and the court being of opinion that the 4th ground of the motion for new trial is well taken, whereupon

"It is ordered and adjudged by the court that this motion be and the same is hereby granted, unless within ten days from this date plaintiff shall file in this court an instrument remitting all damages in excess of $2500.00, and agreeing to a reduction of the judgment to $2500.00; and it is further ordered and adjudged by the court that in the event plaintiff shall file such paper within ten days said motion shall be and is hereby overruled."

Petitioner filed no remittitur, and no further order was entered in the cause during the term, which expired in June, 1933.

There were subsequent orders entered showing a conflict of views as to the effect of the order above noted between the special judge and one of the circuit judges of Jefferson county, and in the order last entered the special judge was of the opinion the cause stood for trial and should be reset upon the docket.

The writ of mandamus is an extraordinary legal remedy which is only to be granted when there is a clear specific legal right shown, for the enforcement of which there is no other adequate remedy. Brody v. Armstrong, 205 Ala. 263, 87 So. 798.

The result here, therefore, turns upon the validity and effect of the order for new trial above set out, and, if thereunder the cause stands for retrial, all other orders become of no controlling importance and need no specific treatment.

The argument of petitioner appears to proceed upon the theory that the conditional feature of the order destroys its effectiveness as a ruling on the motion for a new trial. But conditional orders of this character have been very generally approved (46 Corpus Juris, 418, 419), and the decisions are to the effect that, upon failure of the person given the election to comply with the conditions imposed, the order becomes absolute. 46 Corpus Juris, 419 and 435; Swanson v. Andrus, 84 Minn. 168, 87 N.W. 363, 88 N.W. 252; Dunning v. Crofutt, 81 Conn. 101, 70 A. 630, 14 Ann. Cas. 337; Bonelli v. Jones, 26 Nev. 176, 65 P. 374; Barnett v. Gottlieb, 105 S.C. 67, 89 S.E. 641; Thompson v. Davison & Fargo, 113 Ga. 109, 38 S.E. 306; Bailey v. Dibbrell Min. Co., 183 N.C. 525, 112 S.E. 29; Swett v. Gray, 141 Cal. 63, 74 P. 439; Taber v. Bailey, 22 Cal.App. 617, 135 P. 975.

And in Swanson v. Andrus, supra, such an order as here involved was considered as an appealable order. The opinion contains a full discussion of the question and the correct practice to be followed. So a like order was considered appealable in Swett v. Gray and Thompson v. Davison & Fargo, supra. In the Swett Case, supra, the holding was that plaintiff's appeal constituted a refusal on his part to remit the damages. 46 Corpus Juris, 432.

But resort to decisions elsewhere is unnecessary, as we consider the question as having been in effect determined in the early history of this court by the case of Stephenson v. Mansony, 4 Ala. 317. The holding of the court appears to be sufficiently set forth in the second headnote (4 Ala. 317), as follows: "Upon a motion for a new trial submitted by the defendants, the Court made the following order: 'The plaintiff is hereby required to remit the one thousand dollars damages assessed by the jury, or a new trial is granted by the Court, on the payment of all costs.' In a short time after the Court had adjourned for the term, the defendants paid the costs. At the second term thereafter, the plaintiff moved to strike the cause from the docket, upon his releasing damages-Held, that the costs were paid in due time, but the plaintiff should have elected to enter a remittitur at an earlier day, and the cause could not now be dismissed."

And in the preliminary discussion of the question the court observed:

"It is a right incidental to all Courts invested with the jurisdiction to hear and determine causes, to grant new trials so as to promote justice.

"This power, though guided by certain rules which have been laid down from time to time, must, of necessity, be to a great extent discretional. An order for this purpose may be either absolute or unqualified, or may be conditional and impose upon the party asking it the performance of some act, or to prevent a new trial it may require the party against whom the motion is made to renounce at his election, some advantage he has gained. This being the case it will follow that the order first made by the Circuit Court was entirely regular."

The Stephenson Case, supra, has been often cited in subsequent decisions, among them Willis & Co. v. Planters' & Merchants' Bank, 19 Ala. 141, where in the opinion is to be found the following comments here pertinent: "In Stephenson et al. v. Mansony, 4 Ala. 317, it was held that the court trying the cause may annex, as a condition on which a new trial is granted, that the party asking for it pay costs, or that it be granted unless the plaintiff remit damages. The court in that case ordered upon a motion for a new trial, that 'the plaintiff is hereby required to remit the $1,000 damages assessed by the jury, or a new trial is granted by the court on the payment of all cost.' The cost having been paid in vacation, a short time after the adjournment of the court, at the second term thereafter the plaintiff moved to release the damages and to strike the cause from the docket, but the court held that the cost was paid in due time, and the failure to enter the release by the plaintiff had the effect when coupled with such payment by the defendant, to re-instate the cause. So in Reese v. Billing, 9 Ala. 265, an order was granted setting aside a nonsuit, 'if the plaintiff pay the cost by the next term,' etc. This court said, that by setting aside the nonsuit on the terms indicated, the cause was necessarily continued until the succeeding court should declare by a definitive order, whether the costs were paid, and the condition of the cause."

Other cases noted are Ex parte Lowe, 20 Ala. 330; Ex parte Beavers, 34 Ala. 71; Davis v. McColloch, 191 Ala. 520, 67 So. 701; Central of Ga. R. Co. v. Steverson, 3 Ala. App. 313, 57 So. 494; Birmingham Water Works Co. v. Bailey, 5 Ala. App. 474, 59 So. 338.

Petitioner insists that, under Circuit Court Rule 79, which provides that all such motions not acted on or continued by order of the court are to be discharged as of course on the last day of...