EX PARTE LOUISVILLE N. R. CO., 214 Ala. 489 (1926)

EX PARTE LOUISVILLE N. R. CO., 214 Ala. 489 (1926)
108 So. 379


6 Div. 387.Supreme Court of Alabama.
April 29, 1926.Page 490

Appeal from Circuit Court, Jefferson County, Hon. Roger Snyder Judge.

Jones Thomas, of Montgomery, and McClellan, Rice Stone, W. W. Kennedy, and J. K. Jackson, all of Birmingham, for appellant.

When the right of appeal has once been granted, it cannot thereafter be abolished or abridged by the courts. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; 3 C. J. 660. The statute guarantees the aggrieved party the right of review by certiorari. Woodward Iron Co. v. Bradford, supra; Steagall v. Sloss Co., 206 Ala. 488, 90 So. 871. The decree takes effect and dates from the time it is entered. State v. Williams,69 Ala. 311.

Roger Snyder, of Birmingham, pro se.

Respondent was without authority or jurisdiction to change the date of the decree. Childers v. Samoset Cotton Mills,213 Ala. 292, 104 So. 641.


The petition is for mandamus to a judge of the circuit court.

The right of review by appellate court is declared to be by certiorari. Woodward Iron Co. v. Bradford, 206 Ala. 447,90 So. 803. The right of “appeal” is declared by the decisions to be statutory (Lewis v. Martin, 210 Ala. 401, 98 So. 635); that is to say, in Ex parte Tillman (Ala. Sup.) 108 So. 62,[fn1] it was declared that the effect of Woodward Iron Co. v. Bradford, supra, was that the right of appeal was a part of the remedy (Poull Co. v. Foy-Hays Const. Co., 159 Ala. 458, 48 So. 785), and that the Legislature can limit, restrict, or abolish the right of appeal so long as it does not attempt to restrict the right of this court to exercise its superintendence and control over inferior tribunals under section 140 of the Constitution. Ex parte L. N. R. R. Co., 176 Ala. 631, 58 So. 315; Ex parte Croom May, 19 Ala. 566.

The statute giving the right of review by certiorari under the Compensation Act (Code 1923, ? 7543 et seq.) among other things provides that the decision of the judge hearing the case is conclusive and binding, subject to the right of appeal (as construed by this court [sections 7571, 7578, Code]) from such decree; that any party aggrieved “may by certiorari within 30 days thereafter appeal.”

What, then, is the decision and decree of the judge hearing the case from which the appeal may be taken and review had in the appellate court?

In Lewis v. Martin, 210 Ala. 401, 418, 98 So. 635, the contest was of the probate of a will, where the trial was, as a matter of right, by a jury; it was held the entry of record of the mind and determination of the court audibly expressed was the decree entered pursuant to the verdict; that in such a case the ministerial act of entry of record of the determinationPage 491
of the court must be performed before that determination becomes the judgment, decree, or order, unless it be an order of continuance of motion for new trial or rehearing. It was there said:

“In Lanier v. Russell, 74 Ala. 364, a contest of the probate of a will before a jury, the declaration was made that ‘a judgment, following a verdict, takes effect as of the day the verdict was rendered, unless there is something in the recordshowing it was not pronounced on that day.’ (Italics supplied.) And in Lanier v. Richardson, 72 Ala. 134, the application was for mandamus in matter of entry of judgment on verdict establishing the will; and it was there held that ‘the judgment necessarily follows the verdict, as in an action at law; and the verdict being rendered on Saturday morning, while the court is in session, the judgment is properly entered and dated as of that day, although the entry was not actually made until 10 o’clock at night, after the expiration of office hours.’ The opinions in the last two cases were written by Judge Stone, and, apparently, in the same controversy, or branch thereof. His expression in the last opinion (Lanier v. Russell, 74 Ala. 364,368) was that the judgment ‘takes effect as of the day the verdict was rendered, unless there is something in the record showing it [the decree or judgment] was not pronounced on that day’ ? meaning the day on which the jury returned the verdict. (Italics supplied.) The date of the final decree was that of its rendition, February 16, 1923.”

The return of the circuit judge, respondent in the petition, is to the effect that “said judgment was rendered in its entirety on December 11, 1924”; that “whatever delay occurred in the enrollment of said judgment was the result of the petitioner’s own conduct and solicitation, with full knowledge thereof, and without any fault whatsoever or responsibility therefor on the part of respondent, or any one else other than the petitioner and those who represented it”; that “the rendition of said judgment in its entirety on December 11, 1924, occurred in the presence of the petitioner’s counsel and with their full and complete knowledge of the same, they being then and there given a copy of the same with the date thereon December 11, 1924, signifying the date of the rendition of said judgment”; that, “during the time that petitioner’s counsel were seeking a rehearing and a change of said judgment, the term of the court at which said judgment was rendered expired”; and that thereafter respondent had no jurisdiction or power to change said judgment in any respect, there being no appropriate motion or anything else of record to justify or warrant respondent in altering said judgment, citing the case of Childers v. Samoset Mills, 213 Ala. 292, 104 So. 641.

The right of review by certiorari proceeded from the decree required by the statute of the judge hearing the cause. It is required that said “determination shall be filed in writing, with the clerk of said court, and judgment shall be entered thereon in the same manner as in causes tried in the said circuit court, and shall contain a statement of the law and facts and conclusions as determined by said judge” (Code, ? 7578), and, “whenever any decision or order is made and filed by the court,” the clerk is required to forward copy of same to the probate judge, and the same shall become a lien in like manner as other registered judgments, unless the same is made by law a preferred lien. Section 7580. These and other subsequent provisions of the statute must be considered in pari materia with the preceding provisions of that statute (section 7571) in the ascertainment of the nature of the “decree” from which the aggrieved party may “appeal” by “certiorari within thirty days” after its rendition.

It follows that the act of entry of the determination must be performed by its due enrollment “filed in writing with the clerk” before there is a determination that becomes a “decree” in the sense that the term is used in the statute providing for review by certiorari and the decisions. Lewis v. Martin,210 Ala. 401, 410, and authorities 416-418, 98 So. 635. The pending cause of December 10th or December 11th was carried over to the next term by the general order to the date in January when the “determination,” signed by said judge, was “filed in writing with the clerk of said court.” Harris v. White, 212 Ala. 54,101 So. 751.

The foregoing is not in conflict with Childers v. Samoset Mills, 213 Ala. 292, 104 So. 641, which dealt with a motion for a new trial and the judgment thereon, which was not decided within the term nor duly continued to the ensuing term. In the Lewis-Martin Case, supra, there was jury and verdict at one term, motion for new trial and questions of waiver of discontinuance of the motion, and thereafter the judgment or decree pursuant to the verdict of the jury was entered and enrolled at the ensuing term of the court, within the time the pending cause was continued by operation of law. This final decree, so entered at the subsequent term in that case, was made the basis of appeal from its entry, and was sustained. The date of the final decree was held to be that of its written rendition, which in that case was at the next term, February 16, 1923.

After a careful consideration of the pleadings under the Workmen’s Compensation Act, and its provision for decision and review, the time must be counted from the date of the filing with the clerk of the written expression of the decision and decree of the judge hearing the cause. Such are the decisions in chancery cases: Pollard v. Am. Freehold L. M. Co., 103 Ala. 289,16 So. 801; Zaner v. Thrower, 203 Ala. 650, 653,84 So. 820; Campbell v. Beyers, 189 Ala. 307, 66 So. 651; Wynn v. McCraney, 156 Ala. 630, 46 So. 854; 34 C. J. p. 52, ? 182; 3 C. J. p. 1055, ? 1054, “Appeal and Error.” And in probate decrees: Hall, Adm’r, v. Hudson, Adm’r,Page 492 20 Ala. 284; Stewart’s Adm’r v. Stewart’s Heirs, 31 Ala. 207; Capell v. Landano, 34 Ala. 135; Lewis v. Martin, supra. And in law cases held judgments cannot rest in parol: Campbell v. Beyers, 189 Ala. 307, 66 So. 651; Chighizola’s Heirs v. Doe ex dem. Eslava, 24 Ala. 237; Lockwood v. Thompson, 198 Ala. 295,73 So. 504; Edwards v. Davenport, 11 Ala. App. 423, 66 So. 878. “Appealability” of judgments declared the same must have the “character of potentiality” and of “actuality as a judgment” and have the “probative force” as such. Wynn v. McCraney, supra; Long v. Holley, 157 Ala. 514, 47 So. 655; Ferrell v. City of Opelika, 144 Ala. 135, 39 So. 249; Ala. Nat. Bank v. Hunt, 125 Ala. 512, 28 So. 488; McDonald v. A. M. R. Co.,123 Ala. 228, 26 So. 165; Morgan v. Flexner, 105 Ala. 356,16 So. 716; Bell v. Otto, 101 Ala. 187, 13 So. 43, 46 Am. St. Rep. 117. And in this jurisdiction the period of limitation begins to run from the time of the rendition of an appealable judgment, order or decree. Kirkland v. Mills, 138 Ala. 192,35 So. 40; Smith v. Gordon, 138 Ala. 181, 35 So. 58; Lide v. Park,132 Ala. 222, 31 So. 360; 34 C. J. p. 54, ? 182; 3 C. J. p. 1055, ? 1054.

Adverting to the sufficiency of judgment or order that would support an appeal, it should be indicated that the case of Bell v. Otts, 101 Ala. 186, 13 So. 43, 46 Am. St. Rep. 117, declared that a judgment is a final consideration and determination by a court having jurisdiction of the matter submitted, and should be in form, always be complete and certain in itself, showing that it is the court’s adjudication. Plunkett v. Dendy,197 Ala. 263, 72 So. 525; Martin v. Ala. Power Co., 208 Ala. 212,94 So. 76; Clements v. Hodgens, 210 Ala. 486, 98 So. 467; Speed v. Cocke, 57 Ala. 209, 216.

Pending and undisposed causes carried forward to subsequent terms by the general order of continuance were the subject of Lewis v. Martin, 210 Ala. 401, 410, 411, 412 (17), 413,98 So. 635. It is held that the date referred to in the statute within which bills of exception must be presented is that on which formal judgment or decree is rendered, and not the date on which the verdict is returned. Nat. Pyrites Co. v. Williams,206 Ala. 4, 89 So. 291; Sorsby v. Wilkerson, 206 Ala. 190,89 So. 657; Massey v. Pentecost, 206 Ala. 411, 90 So. 866; Liverpool, etc., Co. v. Lowe, 208 Ala. 12, 93 So. 765; Shipp v. Shelton, 193 Ala. 658, 69 So. 102. It was also held that the 30 days’ statute only applies to final and formal judgments. Lewis v. Martin, 210 Ala. 411, 412, 98 So. 635; Ex parte Margart,207 Ala. 604, 93 So. 505; A. C. L. R. Co. v. Burkett, 207 Ala. 344,92 So. 456. It has been held that it is not a final judgment by default on common counts until writ of inquiry was executed which may be done after 30 days and at the next term. Ex parte Bozeman, 213 Ala. 223, 104 So. 402; Code 1923, ? 6670.

The foregoing will suffice to illustrate that the date within which the statute will run for appeal and review by certiorari must be the filing for enrolling of the formal judgment required by the statute.

Writ granted.


[fn1] Ante, p. 71.