Sadler v. Sessions
| Decision Date | 30 August 1954 |
| Docket Number | 6 Div. 227 |
| Citation | 74 So.2d 425,261 Ala. 323 |
| Parties | Frances Marie SADLER v. D. B. SESSIONS. Flora Ann SADLER v. D. B. SESSIONS. -228. |
| Court | Alabama Supreme Court |
Lipscomb & Brobston, Bessemer, D. G. Ewing, Birmingham, for appellant.
London & Yancey, Birmingham, for appellee.
These two cases are consolidated in one record. They arose out of the same accident, were tried together and were submitted here on May 27, 1954, on the merits and on motion to dismiss, and one on petition for writ of mandamus. Appellee also submitted on a motion to strike the transcript of the evidence but it did not become necessary to consider that particular motion.
6 Div. 227 Frances Marie Sadler v. D. B. Sessions
This is an action for damages by the plaintiff against D. B. Sessions for personal injuries arising out of an automobile accident. On June 8, 1950, a verdict and judgment in favor of plaintiff was entered.
On June 26th a motion for a new trial was presented to the court and it was duly continued to August 10th. The minute entry reads: 'On this the 10th day of August 1950, Motion further heard and evidence presented thereon by affidavits and oral testimony taken before the Court by the court reporter and motion taken under advisement.' The court made the following entry on the margin of the motion:
On August 25, 1950, the trial judge granted the motion for a new trial. On September 21, 1950, he amended the order of August 25th, the minutes reading: 'The court hereby amends the foregoing judgment or order dated August 25th, 1950, by adding the following, 'And to this action of the court the plaintiff duly reserves an exception.''
On September 22, 1950, appellant presented and filed a motion to set aside and vacate the order of August 25, 1950, as amended September 21, 1950, granting the motion for a new trial. The grounds assigned were that the court erred in granting the motion, it erred in setting aside the judgment and in granting a new trial, and it erred in rendering the order or judgment of August 25, 1950, as amended September 21, 1950. This motion, after being duly continued, was on November 17th, submitted and taken under advisement by the court and on December 21, 1950, said motion was overruled, to which action appellant duly reserved an exception.
The appellant's assignments of error are as follows: (1) The trial court erred in granting appellee's motion for a new trial. (2) The trial court wrongfully granted appellee's motion for a new trial and wrongfully set aside the verdict and judgment in said cause. (3) The trial court erred in rendering its order or judgment on December 21, 1950, overruling appellant's motion presented to the court and filed in said cause on September 22, 1950, to set aside and vacate and hold for naught the judgment or order of this court rendered in said cause on August 25, 1950, by which said judgment or order the trial court granted appellee's motion for a new trial in said cause and set aside the verdict of the jury and judgment rendered thereon in said cause.
The appellee has filed a motion to dismiss the appeal on the ground that it was not filed within six months as required by law.
The appeal to this court was taken March 19, 1951. The body of the citation of appeal reads as follows:
'Whereas Frances Marie Sadler has taken an appeal from the judgment of the Circuit Court, Bessemer Division, for the County of Jefferson, State of Alabama, in the cause of Frances Marie Sadler Against D. B. Sessions.
'Now, you are, therefore, cited to appear at the present term, 1951, of the Supreme Court of Alabama to defend on said appeal if you shall think proper to do so.'
We are unable to ascertain from what judgment appellant seeks to appeal, but based on the assignments of error, it is not from the original judgment, which was favorable to appellant. The appeal must be from some appealable judgment within six months prior to March 19, 1951, to wit: September 19, 1950. Code of 1940, Title 7, § 788.
As shown above, the date of the original judgment was June 8, 1950, and the motion for a new trial was granted August 25, 1950. The amendment to this judgment on September 21, 1950, at appellants' request, was surplusage in view of Title 7, § 764, as amended, Pocket Part, which provides, in part, that whenever a motion for a new trial is granted or refused, either party in a civil case, or the defendant in a criminal case may appeal from the decision of the court and in no case 'shall it be necessary for the appellant to reserve an exception to the ruling of the court on the motion for a new trial.' In Alabama Coal & Navigation Co. v. State, 54 Ala. 36, it was held that the day on which the judgment was rendered, and not the day on which the judgment entry was amended, the amendment not changing the character of the judgment, is the time from which the limitation begins to run. See annotation 21 A.L.R.2d 297.
An appeal must be taken within the time and manner indicated by statute, and the date from which the time for appeal may be reckoned (where motion for new trial is duly made), is the date of the due and final rendition of judgment on such seasonable motion for a new trial. Liverpool & London & Globe Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765.
Here the latest appealable order of the circuit court was on August 25, 1950, by which the motion for a new trial was granted. The action of the court on the motion to set aside and vacate the order granting a new trial will not support an appeal.
Although dealing with a motion to set aside a decree sustaining a demurrer to a bill in equity, we think the language of this court in Hinson v. Hinson, 253 Ala. 131, 43 So.2d 130, is applicable here.
Here the attempted appeal of March 19, 1950, was more than six months after the final order of August 25, 1950, and the appeal must be dismissed.
Appeal dismissed.
6 Div. 228 Flora Ann Sadler v. D. B. Sessions
The facts in this case are identical with those stated in 6 Div. 227, supra, except that (1) the trial judge did not sign his name following the quoted entry of August 10th, 1950, on the motion; and (2) there were two additional assignments of error: that the court had no power or authority to rule on appellee's ...
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Western Grain Co. Cases, 6 Div. 374
...but was one to correct a mere clerical error apparent on the face of the original decree. In our recent case of Sadler v. Sessions, 261 Ala. 323, 74 So.2d 425, 427, we approved the rule that 'the day on which the judgment was rendered, and not the day on which the judgment entry was amended......
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Harden v. U.S. Fidelity & Guaranty Co.
...case of Garrett v. Oddo, 261 Ala. 172, 73 So.2d 761, was obviously treated and considered as a motion for a rehearing. Sadler v. Sessions, 261 Ala. 323, 74 So.2d 425, 427, constitutes the latest pronouncement of this Court relating to the instant problem. The significant events in that case......
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Colquett v. Williams
...or judgment was pronounced, I am of the opinion that mandamus, not appeal, was, and is, the appellants' proper remedy. Sadler v. Sessions, 261 Ala. 323, 74 So.2d 425; Ex parte Phillips, 231 Ala. 364, 165 So. 80; Crabtree v. Miller, 229 Ala. 103, 155 So. The petition for mandamus, here prese......
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Shelley v. Clark
...of Georgia Ry. Co. v. McDaniel, 262 Ala. 227, 78 So.2d 290; Pate v. State, 244 Ala. 396, 14 So.2d 251. Our case of Sadler v. Sessions, 261 Ala. 323, 74 So.2d 425, is distinguishable in that in that case an entry was made by the trial judge on the margin of the motion for new trial within th......