Greer v. Heyer , 216 Ala. 229 ( 1927 )

The appeal is from a Judgment granting a new trial upon motion of plaintiff.

The sole question presented in argument is whether the court had lost control over the original judgment and it had become final for failure to keep alive the motion for new trial by proper orders of continuance, under Code, § 6670.

The motion for new trial, filed within 30 days, was regularly continued by consent of the parties until March 20, 1926. No order of continuance was made on or prior to that date, further extending the time for hearing the motion. The new trial was granted on May 5, 1926. Without more, the motion had lapsed, and the court had lost control over the original judgment.

The established construction of the statute is that the motion must be filed within 30 days, and if not heard within that time must be continued by a special order, or successive orders of continuance made within the time fixed by former orders. Mt. Vernon Woodbury Mills v. Judges, 200 Ala. 168,75 So. 916; Ex parte Margart, 207 Ala. 604, 93 So. 505; Southern Ry. Co. v. Blackwell, 211 Ala. 216, 100 So. 215.

But the order for a new trial recites that the motion "coming on to be heard, and having been argued by counsel on a previous day of this term and submitted to the court," it was ordered the motion for a new trial be granted, etc.

The bill of exceptions made part of the record on appeal, after reciting the orders of continuance to March 20, 1926, proceeds:

"That on said 20th day of March, 1926, the said motion was duly argued by counsel for plaintiff and by counsel for defendant, and on said day was taken under submission by said judge."

The question then is, Did the hearing of the motion on the day to which it was regularly continued, and taking the same under submission or advisement, operate to keep the motion alive until acted upon May 5th?

In Childers v. Samoset Cotton Mills, 213 Ala. 292,104 So. 641, the question was whether an appeal had been taken in time, which turned upon when the motion for new trial expired by operation of law. It was held that where the motion was taken under consideration on a date to which it had been regularly continued and not acted upon during the term, the time for appeal would date from the end of the term of court fixed by law.

The necessary effect of the decision is that the submission and taking the motion under advisement operated to keep the motion alive until the end of the term. For the purposes in hand, the hearing is regarded as pending, the trial of the motion is constructively in progress until the judgment is rendered, not beyond the limits of the term of court. We approve and follow that rule as most promotive of justice. The movant should not be called upon to disturb the trial judge by calling for a decision on the date of submission, or for continuances from time to time, pending his consideration of the motion.

Moreover, the record before us discloses that on May 8th, three days after the new trial was granted, the plaintiff asked leave to amend the complaint as per amendment then filed; and on July 31st, thereafter, this motion was by consent continued for the term.

It has long been settled that the rule as to waiver of discontinuances applies to motions for a new trial; that consent proceedings, which necessarily recognize the cause as still pending, operate as a waiver of any prior ground of discontinuances. Shipp v. Shelton, 193 Ala. 658, 69 So. 102; B. R. L. P. Co. v. Hinton, 146 Ala. 273, 40 So. 988; McCarver v. Herzberg, 135 Ala. 542, 33 So. 486; Lewis v. Martin, 210 Ala. 401,410, 98 So. 635; Liverpool, etc., v. Lowe, 208 Ala. 12,93 So. 765; Childers v. Samoset Cotton Mills, 213 Ala. 292,104 So. 641.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.