Merritt v. Carter

• Court: Alabama Supreme Court
• Citation: Merritt v. Carter, 243 Ala. 272, 9 So.2d 779 (Ala. 1942)
• Decision Date: 18 June 1942
• Docket Number: 6 Div. 47.
• Parties: MERRITT v. CARTER.
• Writing for the Court: FOSTER, Justice.

9 So.2d 779

243 Ala. 272

MERRITT v. CARTER.

6 Div. 47.

Supreme Court of Alabama

June 18, 1942

Rehearing Denied Oct. 8, 1942.

Certiorari to Court of Appeals.

Chas. W. Greer, of Birmingham, for the petition.

F.D McArthur and Hal W. Howard, both of Birmingham opposed.

FOSTER Justice.

It is not necessary for the purposes of this case to consider the question of whether the interested parties to a judgment at law can by agreement expressed or implied confer power upon the court to entertain a motion for a new trial made after the expiration of thirty days from the date of its rendition. On this question we refer to McCord v. Rumsey, 19 Ala.App. 62, 95 So. 268, certiorari denied Ex parte Rumsey 209 Ala. 20, 95 So. 269. Section 6670, Code of 1923, Code 1940, Tit. 13, § 119, did not permit a motion to be made and heard after the term of the court as provided in section 6667, Code of 1923, Code 1940, Tit. 13, § 114, though within thirty days after the judgment was rendered. Morris v Corona Coal Co., 215 Ala. 47, 109 So. 278.

It is sufficient here to say that the mere presence of plaintiff's counsel when the motion was continued to June 7, 1941, as recited in that order, is not such an acquiescence in the continued force of the motion as to prevent plaintiff from contending that since the motion was neither granted nor refused, it did not serve to extend the time for signing the bill of exceptions. Code of 1923, section 6433, Code of 1940, Title 7, section 822; 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.

The writ of certiorari is...