Seymour v. Farquhar

• Decision Date: 25 February 1892
• Citation: 10 So. 650,95 Ala. 527
• Parties: SEYMOUR ET AL. v. FARQUHAR ET AL.
• Court: Alabama Supreme Court

10 So. 650

95 Ala. 527

SEYMOUR ET AL. v. FARQUHAR ET AL.

Supreme Court of Alabama

February 25, 1892

Appeal from circuit court, Fayette county; S. H. SPROTT, Judge.

Trover by A. B. Farquhar & Son against A. J. Seymour and others. From an order dismissing the petition for rehearing defendants appeal. Reversed.

John B. Sanford and A. B. McEachin, for appellants.

McGuire & Collier, for appellees.

COLEMAN J.

Farquhar & Son recovered a judgment in trover against appellants. Under sections 2873 and 2876 of the Code the defendants applied for a rehearing. In vacation, the judge presiding granted a rehearing in accordance with the petition, and directed the clerk to issue a supersedeas or restraining order to restrain the collection of the execution issued upon the judgment. Upon application to this court, the order of the judge granting a rehearing in the cause, and ordering a supersedeas or retraining order, was held to have been improperly made, in vacation, and that the facts averred in the petition should have been heard and tried at the next term of the court, as provided in section 2876 of the Code. At the following term of the circuit court of Fayette county, in which the judgment had been recovered, the petitioners for a rehearing moved the court for leave to amend the petition as set out in the proposed amendment, and also for leave to substitute certain papers, which, according to the averments of the motion, were a part of the original petition for a rehearing, and which, in transmission to the judge, were lost. The court refused to grant the amendment to the petition, or to consider the evidence offered to show the loss of a part of the papers of the original petition holding that, under the order of the supreme court, the trial court had no discretion or further jurisdiction than to vacate the order granting the rehearing, and to dismiss the petition. From the action of the court refusing to allow the amendment, and the substitution of the papers, and from the judgment vacating the former order granting a rehearing, and dismissing the petition, the present appeal is prosecuted. When the case was here before, the decision of this court had no other scope or effect than to require that the order of the lower court, granting a rehearing and supersedeas or restraining order be annulled and vacated. It left the petition pending, to be heard at the first subsequent term of the trial court, under ...