Isaacs v. Swindell & Co.

Beck, J. When a motion for new trial pending in the superior court is dismissed in open court, the judge is without authority subsequently at chambers and in a different county, during a recess of said' court, to grant an order reinstating the motion, upon a mere motion by counsel for movant and an ex parte showing, no petition having been filed for the reinstatement of said motion in the superior court and no notice having been given to the respondent. Judgment reversed. All the Justices concur. The order passed reinstating the motion is in the following language : “An order having passed on December 31, dismissing said motion for new trial, and it appearing that the court had granted T. S. Hawes, sole counsel for the movant, a leave of absence for that day, and said court being now in session, the same not having been adjourned, it is ordered that said order of dismissal be vacated and set aside and said ease reinstated. December 22, 1909. W. N. Spence,.J. S. C. A. C.” “Said order, ruling, and judgment reinstating said ease was signed without any written petition, application, or motion, except a letter from T. S. Hawes, on the part of the movant, E. Swindell & Co., or his counsel, made or filed in the office of the superior court of Decatur county, and without being based on any petition, application, or motion in writing so filed, except as above stated, and also without having served the plaintiff or his counsel with notice of any petition, application, or motion to reinstate said cause, and neither the plaintiff nor his counsel was present at the granting, ruling, and judgment, granting and 'ordering said case reinstated, and had no opportunity to resist said order, ruling, and judgment granted, reinstating said case. To this ruling, order, and judgment of the court the plaintiff excepted and now excepts and assigns the same as error, because his honor W. N. Spence was in Mitchell county at the time he granted the order, judgment, and ruling reinstating said case, and the jurisdiction of said case and motion, and the jurisdiction of said ease or motion, had never been transferred to Mitchell county at the time his honor granted said order, ruling, and judgment, from Decatur county, where the land lies, by order transferring the same; it was error for the judge to hear the case in another county, to wit, Mitchell county; the judge, being at the time of granting the order, ruling, and judgment in Mitchell county, had no jurisdiction of the case, the same not having been transferred from Decatur county to Mitchell county, applicant insists. To which order, ruling, and judgment the plaintiff excepted and now excepts and assigns the same as error, for the reason that when his honor W. N. Spence reinstated said case the superior court of.Decatur county was not in actual session, with the judge present at Bainbridge, at the time of granting said order, ruling, and judgment reinstating said case. The plaintiff also excepted to said judgment reinstating said case, and now excepts and assigns the same as error, because his honor “W. N. Spence reinstated said case for the defendant and movant without the said movant and defendant making petition, application, or motion in writing, except 'by letter as above stated, and without serving notice of any petition, motion, or application on the counsel for plaintiff, and without giving the counsel for plaintiff any opportunity of resisting said reinstatement of said case and motion, to which judgment, ruling, and order the plaintiff excepted and now excepts and assigns the same as error, because the movant and defendant had had his day in court, and before any new and extraordinary relief could be obtained or adjudged. Plaintiff in this bill of exceptions insists it was necessary at law for the defendant to file his regular petition, application, or motion in writing, obtain his rule nisi, and serve the counsel for the plaintiff, plaintiff in error insisting that the said.case ended and final judgment had been rendered when said motion for new trial was dismissed on the 21st day of December, 1908.” B. B. Bower, A. II..Bussell, and G. G. Bower, for plaintiff. T. 8. Hawes, for defendants.