Mt. Vernon Woodbury Mills v. Judges of Fifteenth Circuit

• Decision Date: 17 May 1917
• Docket Number: 5 Div. 667
• Citation: 200 Ala. 168,75 So. 916
• Parties: MT. VERNON WOODBURY MILLS v. JUDGES OF FIFTEENTH CIRCUIT.
• Court: Alabama Supreme Court

75 So. 916

200 Ala. 168

MT. VERNON WOODBURY MILLS v. JUDGES OF FIFTEENTH CIRCUIT.

5 Div. 667

Supreme Court of Alabama

May 17, 1917

Rehearing Denied June 21, 1917

Petition for a writ of mandamus by the Mt. Vernon Woodbury Mills against the Judges of the Fifteenth Circuit. Writ granted.

Frank W. Lull, of Wetumpka, for petitioner.

Smoot &amp Mullins, of Wetumpka, for respondents.

SAYRE J.

In a proceeding instituted by the county board of equalization to raise the values of property returned for taxation by the petitioner, an appeal was taken to the circuit court where trial, verdict, and judgment pursuant to the provisions of section 292 of the act "To provide for the assessment valuation and equalization of values of real and personal property for taxation," etc., approved September 14 1915 (Acts 1915, pp. 386-488), were had on October 9, 1916 after which and during the term the Attorney General spread upon the docket a motion for a new trial. On the last day of the term the following notation was made upon the motion docket: "October 21, 1916. Motion continued for thirty days. Leon McCord, Judge." An adjourned term of the circuit court sat from November 15th to November 18th, but neither at that term nor at any other time was any action taken in respect to the motion until January 8, 1917, when, the circuit court for the county being then in session for the first time since November 18th, the court set aside the judgment and ordered a new trial; this over the objection of the petitioner, appropriately made, that the court had lost all power over the judgment and motion. Thereafter the Mt. Vernon Woodbury Mills filed this petition for a writ of mandamus to compel the vacation of the order of January 8, 1917.

"There must be an end of litigation, and a time must come when the power of the court over the judgment must cease, notwithstanding the motion may not have been disposed of" (Walker v. Hale, 16 Ala. 26), and hence this court has uniformly held throughout its history that the ordinary motion for a new trial is not continued by operation of law, if not decided at the term at which it is made, nor will a general order continuing all causes and motions not otherwise disposed of suffice to keep such a motion alive; but, in order to give it vitality at a subsequent term, and give the court power then to act on it, the record must show affirmatively that the motion was made and called to the attention of the court and continued during the term at which judgment was rendered, otherwise the court is ever afterwards without power to entertain it. Ex parte Highland Avenue & Belt R.R. Co., 105 Ala. 221, 17 So. 182; Shipp v. Shelton, 193 Ala. 658, 69 So. 102, and cases there cited. Now the act of September 22, 1915 (Acts 1915, p. 707), provides that:

"Th

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