Ex parte Sovereign Camp, W.O.W.

• Decision Date: 17 February 1925
• Docket Number: 7 Div. 987
• Citation: 104 So. 899,20 Ala.App. 531
• Parties: Ex parte SOVEREIGN CAMP, W.O.W. v. GAY. SOVEREIGN CAMP, W.O.W.,
• Court: Alabama Court of Appeals

104 So. 899

20 Ala.App. 531

Ex parte SOVEREIGN CAMP, W.O.W.

SOVEREIGN CAMP, W.O.W., v. GAY.

7 Div. 987

Court of Appeals of Alabama

February 17, 1925

Rehearing Denied March 17, 1925

Motion of the Sovereign Camp of the Woodmen of the World for mandamus to Hon. O.A. Steele, as Judge of the Circuit Court of Etowah County. Writ awarded. Certiorari denied by Supreme Court in Ex parte Gay (7 Div. 565) 104 So. 900.

See also, 104 So. 895, 898.

C.H Roquemore, of Montgomery, for appellant.

Goodhue & Lusk and Alto V. Lee, all of Gadsden, for appellee.

SAMFORD J.

An application is made to this court, by motion entered here on the motion docket, to which our attention is called, for the grant of the writ of mandamus to O.A. Steele, Judge, etc., to compel the vacation of the order, decision, or judgment of said Steele as Judge, etc., overruling appellant's motion to set aside the judgment nil dicit entered against appellant, and shown by the record in this cause, and to grant appellant's motion in the circuit court for a new trial, all of which matters are included and properly certified in the original record in this cause and now before this court on submission. Upon the original submission of this cause, this court held that the action of the trial judge in denying appellant's application to set aside the judgment rendered nil dicit, and to grant a new trial, was error, and for this error the judgment was reversed. 104 So 895. On certiorari to the Supreme Court (Ex parte Gay [7 Div 515] 104 So. 898), it was held that appeal was not the proper remedy, and remanded the case to this court for further proceedings. With the cause here pending, appellant makes the motion for writ of mandamus, of which motion appellee has had notice. The Supreme Court, in Aust v. Sumter F. & S. Co., 209 Ala. 669, 96 So. 872, in a case in all respects similar to the case at bar, holds the motion not to be presented on transcript paper as required by Supreme Court rule 36, and for that reason could not be considered. Upon that opinion, which is the latest expression of the Supreme Court on the subject, perhaps we should decline to consider the motion and dismiss the appeal, but in other decisions of the Supreme Court, of equal force and perhaps more thoroughly considered, it is held that:

"The practice of applying by motion, entered here on the motion docket, of which notice is given to the parties in adverse interest, has prevailed too long now to be departed from, however informal it may seem." Ex parte Tower Manufacturing Co., 103 Ala. 415, 15 So. 836; Ex parte Garland, 42 Ala. 559; Brazel v. N.S. Coal Co., 131 Ala. 416, 30 So. 832; Brady v. Brady, 144 Ala. 414, 39 So. 237; Ex parte Baltman, 18 Ala.App. 293, 92 So. 24.

It is also held by the same authorities that, "when...