McCord v. Rumsey

Decision Date14 November 1922
Docket Number5 Div. 411.
Citation95 So. 268,19 Ala.App. 62
PartiesMCCORD v. RUMSEY ET AL.
CourtAlabama Court of Appeals

Rehearing Denied Dec. 19, 1922.

Appeal From Circuit Court, Coosa County; W. L. Longshore, Judge.

Action by Z. D. McCord against R. L. Rumsey, J. U. Bridges, and Cleve Hawkins. From a judgment granting motion for new trial and rendering judgment for defendants, plaintiff appeals. Reversed and rendered.

James W. Strother, of Dadeville, W. M. Lackey, of Ashland, John A Darden, of Goodwater, and James J. Mayfield, of Montgomery for appellant.

Riddle & Riddle, of Talladega, for appellees.

SAMFORD J.

The plaintiff in the court below sued in three counts in Code form: First, for conversion of chattels; second, for the wrongful taking of chattels; and, third, for the taking of chattels without the owner's consent. Defendant filed two pleas of the general issue, one of payment and several others. Upon the trial of the cause before the judge, sitting without a jury, on June 22, 1921, judgment was rendered for plaintiff. On July 16, 1921, on motion of defendants, an order was entered setting this judgment aside, and one rendered in favor of defendants and from that judgment is this appeal.

We first consider the question raised by appellant that, as the motion for new trial and for judgment against plaintiff was made after the term of the court at which the trial was had the court was without jurisdiction to enter judgment against plaintiff. If the motion had been made before the end of the term and within 30 days from the date of the original judgment, there could be no doubt that the court, with or without motion, could have corrected an erroneous judgment. Neale et al. v. Caldwell, 3 Stew, 134. In Ex parte Margart, 207 Ala. 604, 93 So. 505, it was held that under section 3 of Acts 1915, p. 707, the court retained power over its judgment for the purpose of entertaining motions for new trial for a period of 30 days from the rendition of the judgment. Besides, in the present case the motion for new trial) was determined on its merits, without objection for want of jurisdiction for failure to file in time and therefore the point is waived. Shipp v. Shelton, 193 Ala. 658, 69 So. 102; 20 R. C. L. p. 31, par. 97. But the inherent power of courts over their judgments ends with the term of court, and a motion in arrest of judgment or for a new trial, although authorized by law (Liverpool & L. & G. Ins. Co. v. Lowe [Ala. Sup.] 93 So. 765), would not continue the entire cause in the breast of the court, as to authorize a judgment on the merits in the original case. The only effect of the granting of the motion is to leave the matter in controversy open to future determination. 15 R. C. L. p. 724, par. 178. Otherwise the party against whom the decision was would suffer judgment without a day in court. For this reason, if no other, the judgment granting the motion must be reversed.

As to the contention made by appellee that the bill of exceptions fails to affirmatively show that it contains all the evidence, it is sufficient to say that the recital in the bill of exceptions so states.

Let us now consider the action of the court in granting the motion for a new trial. The first count of the complaint was in the Code form for the wrongful conversion of certain lumber, was not demurrable, and as to which the plea of not guilty put in issue every matter which might be pleaded in bar, except a release. Ryan et al. v. Young, 147 Ala. 660, 41 So 954. The plaintiff had title to the land...

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9 cases
  • Lewis v. Martin
    • United States
    • Alabama Supreme Court
    • October 18, 1923
    ...objection, will conserve the same purpose. Shipp v. Shelton, supra; Liverpool, etc., Co. v. Lowe, 208 Ala. 12, 93 So. 765; McCord v. Rumsey (Ala. App.) 95 So. 268. In cases the rule of the circuit court as to motion in arrest of judgments and new trials (Code 1907, p. 1522, § 22, first give......
  • Morris v. Corona Coal Co.
    • United States
    • Alabama Supreme Court
    • April 8, 1926
    ...decree had not expired. See Ex parte Bozeman, 213 Ala. 223, 104 So. 402; Ex parte Brickell, Judge, 204 Ala. 441, 86 So. 1; McCord v. Rumsey, 19 Ala.App. 62, 95 So. 268; Monroe County Growers' Ex. v. Harper, Ala.App. 532, 103 So. 600. The court has the inherent right to permit the jury to vi......
  • Richton Overland Co. v. McCormick Motor Car Co.
    • United States
    • Mississippi Supreme Court
    • November 7, 1927
    ...Glaze v. McMillan, 7 Port. 279; Corbitt v. Reynolds, 68 Ala. 379; Broyles Stove, etc., Co. v. Hines, Director General, 87 So. 19; McCord v. Rumsey, 95 So. 268; Wilson Caldwell, 95 So. 337; Hodges v. Westmoreland, 96 So. 573; Story v. Robinson, 99 So. 917; Albertville Trading Co. v. Critcher......
  • McCord v. Bridges
    • United States
    • Alabama Supreme Court
    • April 19, 1923
    ... ... of the mortgage. Jones v. Bell, 201 Ala. 336, 77 So ... 998; Republic I. & S. Co. v. Harris, 202 Ala. 344, ... 80 So. 426; Thomas Furnace Co. v. Carroll, 204 Ala ... 263, 85 So. 455 ... In the ... case of Z. D. McCord v. R. L. Rumsey (Ala. App.) 95 ... So. 268, the question now for decision was touched upon. That ... decision, however, was only binding upon the parties thereto, ... and not on this defendant, Bridges, not a party. It grew out ... of the same transaction, and the rights of the respective ... parties were ... ...
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