Howard v. Alabama Fuel & Iron Co.

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 470.
• Citation: 208 Ala. 500,94 So. 531
• Parties: HOWARD v. ALABAMA FUEL & IRON CO.
• Court: Alabama Supreme Court

94 So. 531

208 Ala. 500

HOWARD v. ALABAMA FUEL & IRON CO.

6 Div. 470.

Supreme Court of Alabama

October 26, 1922

Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Mary Howard against the Alabama Fuel & Iron Company. From a decree denying rehearing, complainant appeals. Appeal dismissed.

Powell & Powell, of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

SOMERVILLE J.

The bill was filed under the statute to quiet the title to certain lands. A final decree dismissing the bill was rendered on August 19, 1920, and on August 28, 1920 complainant filed her application for a rehearing. This application was overruled, as the record shows, on November 19, 1920, by a decree filed on that day, which, however modified the original decree so as to dismiss the bill without prejudice.

The appeal is from the decree overruling the application for a rehearing, and appellee moves for the dismissal of the appeal on the ground that that decree was rendered after the lapse of 30 days from the rendition of the original decree, and without any order of continuance entered within the 30-day period.

Section 3 of the act of September 22, 1915 (Gen. Acts 1915, p. 708) regulating procedure in circuit courts, provides that-

"after the lapse of thirty days from the date on which a judgment or decree was rendered the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day." (Italics supplied.)

Under this provision of the act there must be a decree on the motion for rehearing within the 30-day period prescribed, or else the motion must be continued for future hearing by an order of record made and entered within the 30-day period. This has been several times clearly and explicitly decided by this court, and the rule must be regarded as settled beyond further controversy. Mt. Vernon, etc., Mills v. Judges of Fifteenth Circuit, 200 Ala. 168, 75 So. 916; Hale v. Kinnaird, 200 Ala. 596, 76 So. 954; Ex parte Highland Ave. & B. R. Co., 105 Ala. 221, 17 So. 182.

The record in this case wholly fails to show any order continuing the motion, and the decree thereon was rendered two months after the lapse of...