Pierson v. Pierson

Decision Date08 July 1977
Citation347 So.2d 985
PartiesManley David PIERSON v. Jessie Wood PIERSON. SC 2302.
CourtAlabama Supreme Court

Clifford W. Hardy, Jr., Bessemer, for appellant.

Perry Hubbard, Tuscaloosa, for appellee.

JONES, Justice.

From a decree of the Circuit Court of Bibb County, Judge Thompson presiding, denying Manley Pierson's prayer seeking the reconstruction of a deed as a mortgage, and in the alternative, a decree quieting title to certain property in himself, Mr. Pierson takes this appeal. We affirm.

Appellant seeks review as to sufficiency of the evidence to support the trial Court's judgment in favor of the appellee, Jessie Wood Pierson. Judgment was entered on August 18, 1976. Manley Pierson filed a timely motion for new trial on August 31, 1976. This motion alleged, as its grounds, that the verdict was contrary to the evidence and that new witnesses had been found, who were previously unascertained. This motion was denied on September 24, 1976. Appellant's motion for reconsideration of the motion for new trial was filed on October 13, 1976. An amended motion for new trial, accompanied by the affidavit of a proposed new witness, was filed on November 5, 1976. Judge Russell, before whom these motions were argued, denied them both. Appellant's notice of appeal was filed on November 29, 1976.

As shown below, the record indicates the filing of the notice of appeal was untimely, thereby precluding consideration by this Court of Manley Pierson's contention that the evidence upon which the trial Court based its judgment was insufficient. The only contention with which this Court may deal is the propriety of the trial Court in denying Manley Pierson's motion for reconsideration.

Rule 4(a)(1) of the Alabama Rules of Appellate Procedure (the sole jurisdictional requirement of these rules) requires the filing of a notice of appeal within 42 days of the entry of judgment or order from which appeal is taken. Subsection (a)(3) of this rule further provides:

"The filing of a post-trial motion pursuant to Rules 50, 52 and 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal . . . ."

Thus, Manley Pierson's motion for new trial (Rule 59), filed August 31, suspended the running of the time for appeal.

Rule 4(a)(3) states further that ". . . the full time fixed for filing a notice of appeal shall be computed from the date . . . of an order granting or denying such motion."

The order denying Pierson's motion for new trial was entered on September 24, 1976. Thus, unless his motion for reconsideration and amended motion for new trial further suspend the running of the time for appeal (notice of which was filed on November 29), such appeal is untimely (i. e., it was filed more than 42 days from September 24, 1976). Wilger v. Department of Pensions and Securities, 343 So.2d 529, 531 (Ala.Civ.App.1977).

The motion for reconsideration and amended motion for new trial did not toll the running of the time for appeal of the judgment or the adverse ruling on the original motion. "A motion to reconsider an order disposing of a motion of the kind enumerated in Rule 4(a) does not again terminate the running of the time for appeal." 9 Moore's Federal Practice, P 204.12(1), 951.

Furthermore, Pierson's amended motion for new trial was not, in fact, a motion as captioned. It was, instead, a Rule 60(b) motion for relief from the judgment. It was so treated by the trial Court and a stipulation to this effect was made by movant's counsel. A Rule 60(b) motion is not one of the enumerated type which will toll the running of the time for filing appeal. Therefore, the appeal taken from the case-in-chief was untimely.

This determination brings us to the only viable issue on appeal: the propriety of the trial Court in denying Manley Pierson's Rule 60(b) motion. "Although a 60(b) motion does not suspend the running of the time for appeal, one may prosecute an appeal solely with respect to the trial court's ruling on the 60(b) motion." Wilger, at 532 (citing, 7 Moore's Federal Practice, P 60.30(3), 430-31).

The trial Court has wide discretion in its determination of whether to grant relief pursuant to Rule 60(b), and it will not be reversed on appeal absent abuse of this discretion or the violation of some legal right of the movant. Ag Pro, Inc. v. Sakraida, 512 F.2d 141 (5th Cir. 1975); Morris v. Yancey, 272 Ala. 549, 132 So.2d 754 (1961); and 7 Moore's Federal Practice P 60.19, 228-31. Here, we cannot say the trial Court's action falls within the category of conduct deemed arbitrary, thereby warranting reversal as an abuse of discretion.

The affidavit attached to Manley Pierson's Rule 60(b) motion alleges only that the affiant was in Pierson's hospital room and saw the appellant's wife with a piece of paper. At best, this only goes to contradict testimony of Jessie Wood Pierson.

The trial Court ruled that such evidence could have been obtained with due diligence by counsel for Manley Pierson. The Court stated, and we agree, that the date upon the face of the deed and other circumstances of this case should have placed counsel on notice of the importance of the meeting in Manley Pierson's hospital room. (The deed sought to be voided or reformed was executed by Pierson while he was allegedly legally...

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  • Gillis v. Frazier
    • United States
    • Alabama Supreme Court
    • August 1, 2014
    ...not disturb its judgment on appeal absent an abuse of that discretion. City of Daphne v. Caffey, 410 So.2d 8 (Ala.1981) ; Pierson v. Pierson, 347 So.2d 985 (Ala.1977) ; Garland v. Garland, supra; Hudson v. Hudson, supra. "Beaty v. Head Springs Cemetery Ass'n, Inc., 413 So.2d 1126, 1128 (Ala......
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    • August 7, 1992
    ...473 So.2d 1031 (Ala.1985); Smith v. Clark, 468 So.2d 138 (Ala.1985); Montgomery v. Burchell, 456 So.2d 60 (Ala.1984); Pierson v. Pierson, 347 So.2d 985 (Ala.1977). However, the court indicated in this case that an independent action might be available even as it denied relief under Rule 60(......
  • Osborn v. Roche
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    • Alabama Supreme Court
    • September 14, 2001
    ...discretion of the trial judge, and the appellate standard of review is whether the trial court abused its discretion. Pierson v. Pierson, 347 So.2d 985 (Ala. 1977). In reviewing a ruling of a trial court on a Rule 60(b)(6) motion, the trial court's decision will not be disturbed unless it i......
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    • Alabama Court of Civil Appeals
    • January 10, 2003
    ...discretion of the trial judge, and the appellate standard of review is whether the trial court abused its discretion. Pierson v. Pierson, 347 So.2d 985 (Ala.1977). In reviewing a ruling of a trial court on a Rule 60(b)(6) motion, the trial court's decision will not be disturbed unless it is......
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