Montgomery Traction Co. v. Knabe

• Decision Date: 24 November 1908
• Citation: 48 So. 501,158 Ala. 458
• Parties: MONTGOMERY TRACTION CO. v. KNABE.
• Court: Alabama Supreme Court

48 So. 501

158 Ala. 458

MONTGOMERY TRACTION CO. v. KNABE.

Supreme Court of Alabama

November 24, 1908

On Rehearing, Jan. 14, 1909.

On Rehearing.

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Matilda A. F. Knabe against the Montgomery Traction Company. From a judgment for plaintiff, reducing the verdict from $12,500 to $10,000, defendant appeals. Affirmed.

Rushton & Coleman and H. F. Crenshaw, for appellant.

Hill Hill & Whiting, for appellee.

DENSON J.

This cause was tried, and verdict and judgment were rendered for the plaintiff in the sum of $12,500, on the 14th day of June 1907. The defendant entered its motion to set aside the verdict and that a new trial be granted. The record shows that this motion was heard and determined on Saturday, the 6th day of July, 1907, and that the court on that day, upon the plaintiff offering to remit so much of the judgment as was in excess of $10,000, overruled the defendant's motion, and rendered judgment against the defendant in the sum of $10,000. The record shows that it is from this latter judgment the present appeal is taken.

By an act of the General Assembly entitled, "An act to fix the time of holding the city court of Montgomery," approved December 6, 1900 (Acts 1900-01, p. 122), it is provided that the city court of Montgomery shall hold three terms in each year, commencing, respectively, the first Monday in February, the first Monday in July, and the second Monday in October. By an act of the Legislature entitled, "An act to fix the time of holding the city court of Montgomery," approved February 28, 1907, it is provided that the October term of the city court of Montgomery shall be held on the first Monday in October of each year, and shall continue until the Saturday before the second Monday in July following, and that "the July term of said court shall begin on the second Monday in July of each year and continue until the Saturday before the first Monday in October following unless sooner adjourned by an order thereof." The latter act contains no repealing clause, but it is manifestly repugnant to the act of December 6, 1900. There is absolutely no field of operation for both acts, and the conclusion inevitably follows that it was the intention of the Legislature that the act of February 28, 1907, should operate as a substitute for the act of December 6, 1900. Therefore the act of December 6, 1900, is repealed by implication. City Council of Montgomery v. National, etc., Ass'n, 108 Ala. 336, 18 So. 816. The effect of the act of February 28, 1907, was to convert the city court from a court of three terms to one of two terms, with the October term beginning on the first Monday in October and continuing until the Saturday before the second Monday in July following, and the July term beginning on the second Monday in July. By the act of February 28, 1907, no time is fixed for its taking effect, and it therefore became operative from the day of its approval. 4 Mayfield's Dig. 856.

From the foregoing considerations it follows that the term at which the instant cause was tried was extended until the Saturday before the second Monday in July, which was July 6, 1907. This being true, then according to the language of the statute and to previous decisions of this court that term ended, by operation of law, at 12 o'clock, Friday night, July 5, 1907. According to this construction, Saturday, the 6th, was not in term time, and consequently the session of the court held on that day was held at a time not authorized by law; and judgments and orders purporting to have been rendered and made on that day are void. Johnson's Case, 141 Ala. 7, 37 So. 421, 109 Am. St. Rep. 17; Richardson's Case, 142 Ala. 12, 39 So. 12; Kidd v. Burke, 142 Ala. 625, 38 So. 241. If, however, by any rule of construction, it could be said that the term at which the cause was tried was not affected by the act, then that term expired by operation of law (Act Dec. 6, 1900) on the Saturday before the first Monday in July, 1907, and this would throw the entire week, including Saturday, July 6th, out of term time, because there can be no doubt that the July term, 1907, commenced by law (Act Feb. 28, 1907) on the second Monday of that month, and not earlier. So that in either view it must follow that what purports to be a judgment entered on July 6, 1907 (that appealed from), is void, and will not support an appeal. Therefore the appeal must be dismissed. Kidd v. Burke, supra.

Appeal dismissed.

TYSON, C.J., and HARALSON and SIMPSON, JJ., concur.

On Rehearing.

The original opinion in support of the order dismissing the appeal is based upon the construction or meaning given to the word "until" as it is used in the act which fixes the terms of the city court of Montgomery. The writer of that opinion (also the writer of this), deeming the question not an open one in this court since the promulgation of the decision in the case of Johnson v. State, 141 Ala 7, 37 So. 421, 109 Am. St. Rep. 17, State ex rel. Robertson v. McGough, 118 Ala. 166, 24 So. 395. The court there held that the judgment appealed from was void and would not support an appeal. I have examined all the cases cited by the appellant in support of the application for a rehearing, and find in every one of them that the contract or act construed contained some word, phrase, or sentence which gave to the word "until" as therein used an inclusive meaning.

According to my view, there is not a single word, in the statute under consideration, which can be seized upon as indicating that "until" was used in an inclusive sense. There is no difference between the act construed in the Johnson Case and that here in judgment. I hold to the opinion that the Johnson Case is sound and should be allowed to stand, and that the attack here made upon it should not be suffered to prevail. However, all of the other Justices concur in the conclusion that the Johnson Case is unsound, and that it must be, and is hereby, overruled, and that the word "until," as used in the statute, must be taken and interpreted in an inclusive sense. From this conclusion of the majority it follows that Saturday, July 6, 1907, was a day in term time, and the judgment of the city court rendered on that day will support the appeal. This necessitates further consideration of the cause as presented by the record.

The first question to be determined is whether or not the appellant has a valid bill of exceptions, and, if so, to what extent and for what purposes it may be considered. The trial of the issues of fact, as stated in the original opinion, was had on the 14th day of June, 1907. Section 10 of the act approved February 7, 1901 (Acts 1900-01, pp. 826, 830), prescribing rules of practice and procedure in the city court of Montgomery, provides that "all bills of exceptions relating to the trial of civil causes in said court must be signed by the presiding judge of said court within thirty days after the issue or issues of fact to which said bill of exceptions relates was tried, unless the time for signing such bill of exceptions is extended by agreement of parties or of their counsel or by order of the presiding judge [italics ours], as now authorized by law, respecting the signing of bills of exceptions in the circuit court." The bill of exceptions was signed on July 27, 1907. After the 14th day of June--but during that month--the defendant made its motion for a new trial. The record shows that the motion was heard on the 6th day of July, 1907, and that it was by the court overruled, and also that an order was made by the court, and embraced in the minute entry containing the judgment overruling the motion allowing the defendant 30 days in which to prepare and present its bill of exceptions. This order is relied upon to save the bill of exceptions.

First, it is said by the appellee that the bill cannot be considered because the judgment overruling the motion and granting 30 days within which to present the bill of exceptions was made on a day out of term time. This contention has been disposed of by the conclusion reached by the majority of the Justices (as above announced) whereby the Johnson Case is overruled.

It is next contended that as the extension order prolonged the time for the signing of the bill into another term of the court and the bill was signed during the following term time, the bill was signed in violation of rule 30 of Supreme Court practice, and cannot be considered. This contention is without merit, as it has been decided that this rule applies only to bills signed under agreement of counsel. Driver v. King, 145 Ala. 585...