Liverpool & London & Globe Ins. Co. v. Lowe, 7 Div. 263.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 208 Ala. 12,93 So. 765
• Parties: LIVERPOOL & LONDON & GLOBE INS. CO. v. LOWE ET AL.
• Docket Number: 7 Div. 263.
• Decision Date: 08 June 1922

93 So. 765

208 Ala. 12

LIVERPOOL & LONDON & GLOBE INS. CO.
v.
LOWE ET AL.

7 Div. 263.

Supreme Court of Alabama

June 8, 1922

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Action by O. M. Lowe and others against the Liverpool & London & Globe Insurance Company for breach of agreement to insure. From an order overruling a motion for a new trial after judgment for plaintiffs, defendant appeals. Affirmed.

Hugh Walker, of Anniston, for appellant.

Hugh Reed, of Centre, and Hugh White, of Montgomery, for appellees. [93 So. 766]

THOMAS, J.

The cause was submitted on motion and merits. The judgment rendered was of date of July 27th; the motion for new trial, of date of August 23d, was passed by order of the trial judge to November 1, 1920, and then continued to a date to be fixed. The date for counting the time within which an appeal may be taken, and that for reckoning the time in which a bill of exceptions may be presented to the judge presiding at the trial, should not be confused.

An appeal must be taken within the time and manner indicated by statute; the time prescribed for appeal from such a judgment as that rendered in instant case being "within six months from the rendition." Gen. Acts 1915, p. 711, as amended by Gen. Acts 1919, p. 84. The appeal was taken by lodging with the clerk of the court good and sufficient security for the costs thereof, which bond (containing limited conditions) was filed and approved by the clerk on February 5, 1921. Jacobs v. Goodwater Graphite Co., 205 Ala. 112, 87 So. 363; Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241. The date from which the time for the appeal may be reckoned (where motion for new trial is duly made) is the date of the due and final rendition of judgment on such seasonable motion for a new trial. Hence a proper motion for a new trial, seasonably called to the attention of the court and continued from time to time as required by law, will affect the time in which an appeal may be taken. Wilder v. Bush, 201 Ala. 21, 23, 75 So. 143; Shipp v. Shelton, 193 Ala. 658, 662, 69 So. 102; Woodward Iron Co. v. Brown, 167 Ala. 316, 320, 52 So. 829; State, ex rel. Hamilton v. Kitchens, 148 Ala. 385, 389, 41 So. 871; Florence, etc., Co. v. Field, 104 Ala. 471, 476, 16 So. 538; Buck Creek L. Co. v. Nelson, 188 Ala. 243, 66 So. 476; Ex parte Mrs. A. M. Margart, 93 So. 505. The time of taking the instant appeal was within six months from November 1, 1920, the date to which the motion was duly continued. Notwithstanding this fact, appellant limited the conditions of the appeal bond; the scope and legal effect of its appeal being only from the judgment overruling its motion for a new trial. This is an appeal, under the statute, from a judgment overruling appellant's motion for a new trial. Acts 1915, p. 722. Respective counsel have so treated the appeal. So considering same, we do not pass upon the ruling on demurrer to count 2, or the court's instruction to the jury.

We come, then, to a consideration of appellee's motion to dismiss the amended motion, of date of January 26, 1921, on the ground that there was a discontinuance or departure from the original motion, preventing a consideration of that amendment. The record shows the original motion to have been filed on August 18, 1920, and duly continued by consent to November 1st, when the motion was continued to a date "to be fixed later by the court, on the agreement of counsel of the parties." It has been held that the general order of continuance is not efficacious as a due continuance of a motion for a new trial. Ex parte Mrs. A. M. Margart, 93 So. 505; Hale v. Kinnaird, 200 Ala. 596, 76 So. 954; Mt. Vernon Woodbury Mills v. Judges, 200 Ala. 168, 75 So. 916; Shipp v. Shelton, supra; Ashford v. McKee, 183 Ala. 620, 62 So. 879; Sou. Ry. Co. v. Jones, 143 Ala. 328, 39 So. 118; Ex parte Highland Ave. & Belt R. Co., 105 Ala. 221, 17 So. 182. The circuit courts of the several counties of the state are open for the transaction of business from the first Monday in January to and including the last Saturday of June of every year, and from the first Monday after the 4th of July to and including the last Saturday before Christmas Day of every year. Gen. Acts 1915, p. 707, § 1; Clio Banking Co. v. Brock, 204 Ala. 57, 85 So. 297; Cleveland v. Little Cahaba Coal Co., 205 Ala. 369, 87 So. 567. The special continuance of the motion indicated was sufficient to carry that motion to a date to be fixed in January for its hearing. Mt. Vernon Woodbury Mills v. Judges, supra. The respective counsel have so considered in their arguments that such was the effect of the continuance of date of November 1, 1920. On January 26, 1921, defendant sought to amend its original motion by the addition of new matter...