Johnson v. Foust

• Decision Date: 09 April 1942
• Docket Number: 8 Div. 160
• Citation: 7 So.2d 864,242 Ala. 659
• Parties: JOHNSON et al. v. FOUST et al.
• Court: Alabama Supreme Court

7 So.2d 864

242 Ala. 659

JOHNSON et al. v. FOUST et al.

8 Div. 160

Supreme Court of Alabama

April 9, 1942

Rehearing Denied May 14, 1942.

Appeal from Circuit Court, Marshall County; A.E. Hawkins judge.

Street & Orr, of Guntersville, for appellants.

Marion F. Lusk, of Guntersville, for appellees.

FOSTER Justice.

A final decree in equity was rendered December 2, 1940. On December 28, 1940, appellants moved for a rehearing. Chancery Rule 81. Several continuances of the motion were made extending the last time to and including June 10, 1941. No order was made on the motion on that day, so that it then ceased to be within the power of the court. This appeal was taken within six months from that day, but more than six months from the date of the final decree. The question is whether the failure to act on the motion for a new trial deprived appellants of the right to appeal within six months from the time the court lost jurisdiction over the motion.

As between Rule 81 of the Code of 1923, Vol. 4, p. 932, and Rule 62, Equity Rules, of the Code of 1940, Tit. 7 Appendix, the former is operative under Rule 120, Code of 1940, by its express terms. But in the case of Williams v Knight, 233 Ala. 42, 169 So. 871, 876, it is said "It would appear that the modern tendency for simplification of procedure in the circuit court would be conserved by the same rule at law and equity prevailing as to the right of appeal and lifting the bar of the statute pending hearing on the motion for a new trial and rehearing. Such is the analogy to be found in the holding in Tucker et al. v. Houston et al., 216 Ala. 43, 112 So. 360; Lewis et al. v. Martin et al., 210 Ala. 401, 98 So. 635. These decisions, and many recent statutes affecting those divisions of the circuit court and that providing for suspension of the judgment or decree pending motion for a new trial or rehearing (section 6670, Code), have been a legislative change of rule 81, Chancery Practice, to the extent that when the motion for rehearing or motion to set aside the decree is duly made and called to the attention of the court, it has the effect of suspending all action on the decree until the same has been disposed of by law."

And that case also makes the following quotation from Richards v. Williams, 231 Ala. 450, 165 So. 820, 822: "The effect of these decisions is, that a motion for a new trial has the effect of suspending the running of the statute and affecting the time within which an appeal may be taken and maintained, only where there is a valid judgment on such motion."

This Court had in three cases prior to Richards v. Williams, supra, held as thus declared in suits at law. Stallings v. Clark, 218 Ala. 31, 117 So. 467; Folmar v. First National Bank, 223 Ala. 625, 137 So. 777; Cain v. Jefferson Standard Life Ins. Co., 227 Ala. 458, 150 So. 689.

When the new equity rules were adopted, effective January 1, 1940, but not applicable to suits then pending by Rule 120, Code 1940, Tit. 7 Appendix, and when the new Code was adopted, effective May 31, 1941, there was no effort made to modify the principles thus declared, but there was manifested, as we will show, a tendency to make them more effective, as applied to suits in equity.

Rule 81 did not contemplate a decree in equity on an application for rehearing which was denied, and was out of line with many features of the same Code, and Rule 81 had been impliedly modified by sections 6636 and 6670, as was pointed out in Williams v. Knight, supra. All the cases in which this Court has acted on the subject in equity were those in which the application was denied by an order of the court. The case of Stallings v. Clark, supra, which first declared this principle at law, based it on section 6127, Code of 1923, Code 1940, Tit. 7, § 788, with special reference to the rendition of a judgment or decree. And held that since the only judgment rendered in the case was more than six months before the appeal was taken, it was not within the statutory period. That status is exactly the same in equity as at law. Therefore to save the time in equity, there should be an order denying the application as at law for there must be the rendition of a decree as provided in section 6127, Code of 1923. This is what Stallings v. Clark, supra, held.

There was a change made by the adoption of the new rules in equity, whereby Rule 81 was made to read as in new Rule 62. This change makes it positive that there must be a ruling on an application for a rehearing in equity, and that it requires such ruling to make effective the suspension of the time in which to appeal.

This emphasizes a purpose to have the principle first declared in Stallings v. Clark, supra (at law) to continue and to apply in equity, and to leave no room for doubt in that connection.

It is our view that the same status should continue to be thus declared by this Court in respect to decrees not subject to the effective operation of the new equity rules as well as to those which are controlled by them.

We have not failed to take note of the case of Housing Authority v. Abney, 241 Ala. 256, 2 So.2d 428, to the effect that a motion for a new trial timely made and continued suspends the finality of the judgment for the purpose of an appeal. In that case the appeal was taken by the party who had not made the motion for a new trial, and while the court held jurisdiction by reason of the motion by his adversary.

In the case of MacMahon v. Dozier, 237 Ala. 574, 187 So 710, the appeal was taken by the party who had made the motion for a new trial, and we...