Childers v. Samoset Cotton Mills , 213 Ala. 292 ( 1924 )

This appeal was taken more than six months from the rendition of the main judgment, and cannot therefore be considered to review same. Indeed, the appeal is not from the main judgment but from what purports to be a judgment upon the motion for a new trial entered August 14, 1923, and was taken within six months after the date of said entry. So the question is, was the judgment on the motion for new trial such a valid one as would support an appeal? It may be conceded that the motion was kept alive by orders of continuance until June the 10th, when it was taken under consideration by the court for decision, but it was necessary for the court to have decided the same during the term, or else continued it to the next term, and which said order must have been made during the existing term, in order to prevent a discontinuance of said motion. It is a well-established rule of law that all causes expire with the end of the term unless continued, and that as to motions of this character, there must be a specific continuance as distinguished from a general order. Mt. Vernon Mills v. Judges of Fifteenth Circuit, 200 Ala. 168, 75 So. 916, and cases there cited. Nor does the fact that the court had the motion under consideration when the term expired remove it from the influence of the rule, as it was just as essential to keep it alive by a proper continuance as if it had not been taken under advisement. In fact, the trial judge seems to have appreciated the necessity for a continuance by making an order to that effect on July the 1st, but which was unfortunately abortive, as it was made in vacation and after the cause had been discontinued by the expiration of the term. The entry of August the 14th overruling the motion being void, a subsequent order setting the same aside was unnecessary, though we may add that the court has the authority to expunge a void order at any time when in session.

In the case of Liverpool Globe Ins. Co. v. Lowe, 208 Ala. 12,93 So. 765, the motion was continued during the term. Moreover, there was a waiver of a discontinuance, if such there was, and no insistence against the ruling on the original motion but against the motion as amended. Here the motion was continued during vacation, and after the same had expired with the end of the term, and there is nothing in the record to show that counsel subsequently waived the discontinuance.

The motion to dismiss the appeal must be granted, and said appeal is dismissed.

As the appeal must be dismissed, the establishment of a bill of exceptions can serve no useful purpose.

Appeal dismissed.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.

On Rehearing.