Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 5 Div. 906.

• Decision Date: 10 April 1934
• Docket Number: 5 Div. 906.
• Citation: 155 So. 710,26 Ala.App. 136
• Parties: MT. VERNON-WOODBERRY MILLS v. UNION SPRINGS GUANO CO.
• Court: Alabama Court of Appeals

155 So. 710

26 Ala.App. 136

MT. VERNON-WOODBERRY MILLS v. UNION SPRINGS GUANO CO.

5 Div. 906.

Court of Appeals of Alabama

April 10, 1934

Rehearing Denied May 8, 1934.

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Action on the case by the Union Springs Guano Company against the Mount Vernon-Woodberry Mills, Inc. From a judgment for plaintiff, defendant appeals.

Affirmed.

Certiorari denied by Supreme Court in Mt. Vernon-Woodberry Mills v Union Springs Guano Co. (5 Div. 180) 155 So. 716.

James W. Strother, of Dadeville, for appellant.

Denson & Denson, of Opelika, for appellee.

SAMFORD, Judge.

This case was brought by Union Springs Guano Company, as plaintiff, against Mount Vernon-Woodberry Mills, as defendant, and its purpose was to recover damages on account of the destruction by the defendant of a lien owned by the plaintiff on cotton.

The case was tried at Dadeville in March, 1932, before the court and a jury. On March 25 (or March 26), 1932, the jury returned into open court a verdict in favor of the plaintiff for $500, written on a piece of paper and signed by the foreman, being in these words: "We the jury find for the plaintiff and assessed the amount of $500.00. T. E. Downing Foreman."

The verdict was read in open court, and thereupon the presiding judge, in open court, made the following bench entry on the docket: "3-25-32. J. & V for plaintiff, and assesses the damages at $500.00 T. E. Downing, Foreman."

On April 8, 1932, the defendant filed its motion for a new trial; the opening paragraph of said motion being in the following words: "Comes the defendant in the above styled cause and moves the court to set aside the verdict of the jury and the judgment and to grant to the defendant a new trial in said cause for the following reasons and on the following grounds, towit:"

There was no hearing on this motion within thirty days from the trial or within thirty days after March 26, 1932, but on or about June 13, 1932, this motion was taken up on a call of the docket at Dadeville, and at that time the judge entered on the motion docket the following: "This motion is continued for thirty days from June 20, 1932."

Before there was any hearing, the plaintiff filed a motion to enter a discontinuance of the defendant's motion for a new trial; the contention being that the motion for a new trial had not been heard by the court within thirty days from the time of the trial, and that no order of the court, continuing the hearing on the motion, had been made and filed in the cause within that thirty-day period.

There was a hearing on July 1, 1932, and that hearing was continued to July 15, 1932. It was shown without dispute on the hearing that on April 23, 1932, the judge who heard the case at Dadeville signed an order at Opelika, continuing the hearing on the motion for a new trial for thirty days from April 23, 1932, and that on May 21, 1932, the judge who tried the case at Dadeville signed an order at Opelika Ala., continuing the hearing on the motion for a new trial thirty days from May 21, 1932, but it was also shown without dispute that neither of these orders was ever filed in the office of the clerk of the court or delivered to the clerk of the court to be filed at any time prior to June 13, 1932, and that neither of these orders was, prior to June 13, 1932 marked filed by the clerk, nor entered on the motion docket or any record of the court, nor placed in the covers of the motion docket.

On this same hearing, on July 15, 1932, the defendant presented an affidavit of the clerk of the court showing that there had been no entry of judgment in the case until July 12, 1932, which was after the expiration of the term at which the case had been tried. On that hearing on July 15, 1932, the court overruled plaintiff's motion for a discontinuance of defendant's motion for a new trial, and made an order continuing the hearing on the motion for a new trial.

On August 1, 1932, plaintiff filed a motion for the entry of a judgment nunc pro tunc, and it was set down for hearing on August 6, 1932. On August 6, 1932, the defendant filed a motion in arrest of judgment and filed objections to the entry of the judgment nunc pro tunc, and on August 6, 1932, plaintiff filed a motion to strike the defendant's motion in arrest of judgment.

The court took under advisement all these matters, to wit, the motion for a new trial, the motion for judgment nunc pro tunc, the motion for an arrest of judgment, the motion to strike the motion for an arrest, and on August 12, 1932, made an order in which the court: Denied and refused the motion in arrest of the judgment; withdrew and revoked the order made on July 15, 1932, which denied plaintiff's motion to declare a discontinuance of defendant's motion for a new trial, and granted plaintiff's motion to declare a discontinuance of defendant's motion for a new trial; granted plaintiff's motion for the entry of a judgment nunc pro tunc. This order of the court was filed in the office of the clerk on August 13, 1932, and thereupon the clerk entered in the minutes of the court a judgment in the case.

On August 16, 1932, the defendant filed in the cause a new motion to set aside the verdict and judgment and for a new trial. The plaintiff filed objections to the hearing of that motion for a new trial. And on August 20, 1932, the court made an order sustaining plaintiff's objections to a consideration of the new motion for a new trial, and that motion for a new trial was denied and dismissed.

There is a distinction and a difference between the rendition of a judgment and the entry of the judgment in the minutes of the court. In a court of law, where the trial is before a jury, the pronouncement of the court on the verdict rendered is the rendition of judgment, and the entry of such judgment is the ministerial act of the clerk in making the entry on the minutes to the end that the evidence of the judgment of the court as pronounced may be preserved as a permanent record. Under the practice in this state, in cases tried before a jury, when the jury renders its verdict, the pronouncement of judgment on the verdict follows as a matter of course and the entry by the trial judge on the trial docket of a memorandum of the verdict and judgment is the rendition of the judgment of the court. The minutes of the court evidencing the judgment may be and usually are written at a future time and dated as of the date of the rendition of the judgment. A different rule obtains in decrees required to be signed by judge or chancellor, but judgments in courts of law are not required to be so signed. 48 Corpus Juris, 46 (176); Lanier v. Richardson, 72 Ala. 134; Lanier v. Russell, 74 Ala. 364; Ware v. Kent, 123 Ala. 427, 26 So. 208, 82 Am. St. Rep. 132.

With the written verdict of the jury and the memorandum entry of the judge on the trial docket the plaintiff was entitled to have his motion granted to have the judgment entered on the minutes nunc pro tunc. Ware v. Kent, 123 Ala. 427, 26 So. 208, 82 Am. St. Rep. 132; Campbell v. Beyers, 189 Ala. 307, 66 So. 651.

The motion of defendant to set aside the verdict and judgment made and filed on April 8th was not acted upon until July 15th, at which time it is made to appear that in Opelika, on April 23d and May 25th, the judge signed orders continuing the hearing of the motion for thirty-day periods, but that these orders were never filed with the clerk at Dadeville and no public record was ever made of such orders. Unless the orders made by the judge at Opelika on April 23d and May 25th and not filed in the case had the effect of keeping the motion alive, the trial court would have no authority in the matter. Code 1923, § 6670; Ex parte Cunningham, 19 Ala. App. 584, 99 So. 834. We do not think that the attempted orders made by the trial judge in Opelika and never filed in the court at Dadeville, nor ever made known to the clerk, or to the attorney for both parties, were such orders of continuance of the motion as is contemplated by the statute. The motion was discontinued.

It follows from the above that the trial judge properly overruled the motion of defendant for a new trial, properly overruled defendant's motion in arrest of judgment, and properly granted plaintiff's motion for a judgment nunc pro tunc.

It is insisted by appellant that the court erred in overruling its demurrer to the complaint. Following this insistence are many assignments of error relating to the trial of the case, but nowhere in the record do we find a judgment to support these assignments. The only judgment in this record relates to a motion in arrest of judgment, the overruling of defendant's motion for a new trial, and the granting of plaintiff's motion for a judgment nunc pro tunc. While these judgments are all mixed up as a part of the opinion of the trial judge, which is set out in full in the minutes of the court, we have treated them as coming under the influence of section 6088 of the Code of 1923, and as such will support this appeal.

Insistence is made that the court erred in overruling demurrers to the several counts of the complaint. Counts 1 and 3 state a cause of action for the destruction of a lien. In these counts the action is in case and not in trover. These counts claim damages for that subsequent to August 20, 1930, and during the remainder of that year and the year 1931, the exact times being unknown, the defendant took and converted to its own use and put beyond the reach of the plaintiff twenty bales of cotton upon which plaintiff had a lien for rent and advances, and plaintiff avers that defendant had knowledge of such lien at the time of such conversion and by said conversion plaintiff lost its lien. Counts 1 and 3...