Southern Ry. Co. v. Griffith

• Citation: 58 So. 425,177 Ala. 364
• Parties: SOUTHERN RY. CO. v. GRIFFITH.
• Decision Date: 01 February 1912
• Court: Supreme Court of Alabama

58 So. 425

177 Ala. 364

SOUTHERN RY. CO. v. GRIFFITH.

Supreme Court of Alabama

February 1, 1912

Rehearing Denied May 1, 1912.

Appeal from Birmingham City Court; C. W. Ferguson, Judge.

Action between J. E. Griffith and the Southern Railway Company. From a judgment for Griffith, the Railway Company appeals. Appeal dismissed.

J. T Stokely, of Birmingham, for appellant.

Arthur L. Brown, of Birmingham, for appellee.

SIMPSON J.

The judgment in this case was rendered on the 11th day of January, 1911. A motion to set aside the judgment was filed on the 10th day of February, 1911, which motion was not called to the attention of the court until the 11th day of February, 1911, at which time said motion was continued to February 20, 1911, and thereafter continued from time to time until June 24, 1911, when an order was entered granting the same, from which said judgment this appeal is taken.

This court has heretofore fully considered the Act of February 28 1889 (Acts 1888-89, p. 992), by which the city court of Birmingham was created, and has held that, under the words of that act, "in order to give it (the motion) vitality at a subsequent term, and give the court power then to act on it, it must affirmatively appear from the record in the cause that the motion was made and called to the attention of the court, and continued during the term at which the judgment was rendered; otherwise the court is ever afterwards without power to entertain it." Ex parte Highland Avenue & Belt R. Co., 105 Ala. 221 223-224, 17 So. 182, 183. This necessarily follows from the wording of the act, which provides (section 20): "That final judgments and decrees rendered in said court shall, after the expiration of thirty days from their rendition, be taken and deemed as completely beyond the control of the court, as if the term of said court at which said judgments and decrees are rendered had ended at the end of said thirty days." As this court said, in the case just cited: "The end of 30 days after final judgments and decrees have been rendered in said court, as to them, is thereby made the end of the term of the court, and thereafter the court has no more power or control over them than it would have if the term had finally adjourned."

The case of Birmingham Railway, Light & Power Company v Hinton, 146 Ala. 273, 40 So. 988, is not in conflict with this proposition. In that case the motion was made in proper time,...