W.C. Agee & Co. v. Clark

• Decision Date: 26 November 1912
• Citation: 6 Ala.App. 128,60 So. 460
• Parties: W. C. AGEE & CO. v. CLARK.
• Court: Alabama Court of Appeals

60 So. 460

6 Ala.App. 128

W. C. AGEE & CO. v. CLARK.

Court of Appeals of Alabama

November 26, 1912

Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge.

Action by Gus Clark against W. C. Agee & Co. Judgment for defendants. From an order granting a new trial, defendants appeal. Reversed and remanded, and motion dismissed.

Frank S. White & Sons, of Birmingham, for appellants.

Arthur L. Brown, of Birmingham, for appellee.

WALKER P.J.

The plaintiff's (appellee's here) motion for a new trial was made and submitted to the court for decision within the 30 days allowed for that purpose by the provision of section 11 of the Act "to regulate the practice and proceedings in civil cases in the circuit court of Jefferson county," etc. Acts Ala. 1888-89, p. 797. This submission was taken on December 10, 1910. The then pending term of the court could not continue beyond the last day of that month, "unless said day falls on a Sunday then to and including the following Monday." Code, § 3240. By the terms of the section of the practice act above referred to an application for a new trial, made within the 30 days allowed, has the effect given by the general law to such a motion when made in term time. What that effect is was stated in the opinion in the case of Hundley v Yonge, 69 Ala. 89, which has been followed in subsequent cases. Ex parte Highland Avenue & Belt R. Co., 105 Ala. 221 17 So. 182; Southern Ry. Co. v. Jones, 143 Ala. 328 39 So. 118.

In the opinion in the first-cited case it was said: "Such motions are not, however, like causes pending in the court in which no final action is had, continued by operation of law, if not decided at the term at which they are made; nor are they kept alive by the mere general order of continuance of all causes and motions not otherwise disposed of, which it is the practice of the court to enter at the close of each term. Unless it appears affirmatively from the record that the motion was made and called to the attention of the court during the term at which judgment was rendered, and by the court continued, it is without vitality at a subsequent term, and the court has not power to entertain it." So it appears that the extent of the court's power in reference to the motion was either to decide it during the term at which it was submitted or by continuing it retain the right to dispose of it at a subsequent term.

In the present case the court did...