Shipp v. Shelton, 816

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 69 So. 102,193 Ala. 658
• Parties: SHIPP et al. v. SHELTON.
• Docket Number: 816
• Decision Date: 03 June 1915

69 So. 102

193 Ala. 658

SHIPP et al.
v.
SHELTON.

No. 816

Supreme Court of Alabama

June 3, 1915

Appeal from Circuit Court, Morgan County; D.W. Speake, Judge.

Action by John B. Shelton against Thomas R. Shipp, as Sheriff, and his sureties on his official bond, for trespass. There was a judgment for plaintiff, and defendants appealed to the Court of Appeals, and it transferred the case, under Act April 18, 1911 (Laws 1911, p. 450) § 6, to the Supreme Court. Motion to dismiss appeal overruled, and judgment reversed and remanded.

The trespass grew out of the levy of an execution in favor of the Van Vleet-Mansfield Drug Company against P.C. Gaston on personal property belonging to plaintiff, consisting of articles described. It appears from the pleadings that plaintiff bought the stock of goods from P.C. Gaston, and that said Gaston had claimed the same as exempt at the time he filed the petition in the District Court of the United States to be adjudged a bankrupt. The further facts appear in the opinion.

Wert & Lynne, of Decatur, for appellant.

W.T. Lowe and Tennis Tidwell, both of New Decatur, for appellee.

THOMAS, J.

This is an appeal from the judgment of the circuit court of Morgan county, rendered on the 28th day of October, 1912. The bill of exceptions was presented on January 2, 1914, to the judge who presided at the trial of the cause, and by him signed on April 1, 1914, and the appeal was taken on the 1st day of May, 1914. The cause was submitted on the motion to strike the bill of exceptions on the ground that the bill was not presented to the trial judge within 90 days from the day on which the judgment was entered in the cause (Code 1907, §§ 3019, 3020), and on the motion to strike the assignment of errors on the ground that the appeal was taken more than 12 months after the rendition of the judgment, and on the merits.

The record shows that a motion for a new trial was filed on the 4th day of November, 1912, and was passed for hearing to December 23, 1912. On January 3, 1913, the motion was "submitted for decision in vacation, judgment to be rendered of this date," and no action was taken by the court on the motion before the adjournment of the term of the court, and no formal order of continuance to the next term was made. The next term--the spring term--of this court began on April 14, 1913, and continued in session until October 11, 1913. On May 23, 1913, an order was made in the cause in the following words:

"Come the parties by their attorneys

and the motion for new trial in this cause not having been passed on, upon agreement of parties it is hereby ordered and adjudged that the hearing on said motion for a new trial be and the same is hereby, continued."

And on October 7, 1913, the cause was again submitted for decision on the motion for a new trial, and the new trial was on that day denied.

What, then, was the effect of the final adjournment of the circuit court of Morgan county, without making an order of continuance of the motion to the spring term of the circuit court, that convened on April 14, 1913? What effect had the continuance by consent on May 23, 1913, and the resubmission for decision of the motion on October 7, 1913, and its refusal on that day?

Ordinarily, an order of continuance is necessary to keep a motion for a new trial alive when not acted on at the term at which the motion is made. This does not apply to an adjourned term, which is deemed a part of the regular term. Sou. Ry. Co. v. Jones, 143 Ala. 328, 39 So. 118; Ashford v. McKee, 183 Ala. 620, 62 So. 879; Agee & Co. v. Clark, 6 Ala.App. 130, 60 So. 460; Hundley v. Yonge, 69 Ala. 89.

The general order of continuance of all causes and motions not otherwise disposed of does not keep the motion alive, and the court was without power at the subsequent term to entertain it against the objection of plaintiff, Sou. Ry. Co. v. Jones, supra; Ex parte Highland Ave. & B.R.R. Co., 105 Ala. 221, 17 So. 182; Hundley v. Yonge, supra.

In the instant case the plaintiff in the court below did not object to a continuance and then to a resubmission of the motion to the court, but of date May 23, 1913, consented that the motion be continued to the next term, and on October 7, 1913, consented that the motion be submitted to the court for decision.

When a motion for a new trial is heard and determined on its merits, without objection or claim that the court is without authority to hear the same because the record fails to show an order continuing the motion, the discontinuance is waived, and the objection cannot be insisted upon for the first time in this court; this according to many decisions of this court. B.R., L. & P. Co. v. Hinton, 146 Ala. 273, 40 So. 988; Ala. S. & W. Co. v. Sells et al., 168 Ala. 547, 52 So. 921; McCarver v. Doe ex dem. Herzberg, 135 Ala. 542, 33 So. 486; McConnell v. Worns, 102 Ala. 587, 14 So. 849; Kennedy v. Pickering, Minor, 137; 7 Mayfield's Digest, 645.

Motion for a new trial, seasonably made, suspends the judgment. The judgment does not become final for the purpose of an appeal until the motion is disposed of; and the time within which an appeal from a judgment, after the rendition of which a motion for a new trial has been seasonably made, may be taken, must be considered to begin to run from the date whereon the trial court rules on the motion for a new trial. The new trial being denied on October 7, 1913, the appeal was taken within the time prescribed by the statute. Florence Cotton & Iron Co. v. Field, 104 Ala. 471, 16 So. 538; Woodward Iron Co. v. Brown, 167 Ala. 316, 52 So. 829; [69 So. 104] Barron v. Barron, 122 Ala. 194, 25 So. 55; Hamilton v. Kitchens, 148 Ala. 385, 41 So. 871.

The bill of exceptions was presented to the judge presiding at the trial of the cause within 90 days from the day on which the judgment was...