Morgan v. Flexner

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, J.
• Citation: 16 So. 716,105 Ala. 356
• Decision Date: 19 December 1894
• Parties: MORGAN v. FLEXNER ET AL.

16 So. 716

105 Ala. 356

MORGAN
v.
FLEXNER ET AL.

Supreme Court of Alabama

December 19, 1894

Appeal from circuit court, Butler county; John P. Hubbard, Judge.

Action by Flexner & Lichten against A. L. Morgan. Plaintiffs had judgment, and from an order overruling defendant's motion to vacate the judgment, and quash a writ of venditioni exponas issued thereon, defendant appeals. Appeal dismissed.

J. M. Whitehead, for appellant.

J. C. Richardson, for appellee.

McCLELLAN, J.

Motions were made by A. L. Morgan in the circuit court to set aside a judgment rendered some years previously in that court, on the ground that said judgment was void, and also to quash and set aside a venditioni exponas issued upon said alleged void judgment a short time before the motions were made. At the end of these motions as copied into the transcript is the following: "(16) Refused, and movant excepts, and is given 40 days from adjournment of court to present bill of exceptions. Hubbard, Judge." This entry, obviously copied from the trial docket, is assumed by the appellant to be a judgment of the court overruling and denying their motions, and from it, as such, this appeal is prosecuted. But it is not a judgment, but only a docket memorandum of the presiding judge, intended and operating merely as a direction to the clerk as to what judgment should be entered on the records of the court. It may never have been acted on by the clerk, and will not support an appeal or an assignment of error. Baker v. Swift, 87 Ala. 530, 6 So. 153; Park v. Lide, 90 Ala. 246, 7 So. 805. The motion to dismiss the appeal must therefore prevail.