Southern Railway Co. v. Griffith

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 Avhich time said motion was continued to February 20, 1911, and thereafter continued from time to time until June 24, 1911, Avhen an order Avas entered granting the same, from Avhich said judgment this appeal is taken.

This court has heretofore fully considered the Act of February 28, 1889 (Acts 1888-89, p. 992), by Avhich the city court of Birmingham Avas created, and has held that, under the Avords 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 Avhich the judgment was rendered; otherAvise the court is ever afterwards without power to entertain it.” —Ex parte Highland Avenue & Belt R. Co., 105 Ala. 221, 223-224 , 17 South. 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 us completely beyond the control of the court, as if the term of said court at which said judgments and decrees *366 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 South. 988 , is not in conflict with this proposition. In that case the motion was made in proper time, and continued from time to time; but at one of the subsequent dates the record failed to show an entry continuing the motion to the next succeeding date, at which it was taken up and continued to another date at which it was disposed of, so that the only question was whether said hiatus amounted to a discontinuance of the motion, and the court held that, as it was then taken up and disposed of without objection, “this was a waiver of the discontinuance.”

In the present case it is a question of the power of the court, and it is a familiar law that after the adjournment of a term the judgments have passed beyond the power and control of the court, and no order or orders, of the court, thereafter can effect said judgment in any way save in the cases and mode prescribed by statute.

The judgment of the court being void the appeal is dismissed.

Appeal dismissed.

All the Justices concur, except ' Dowdell, C. J., not sitting.