Ex Parte Holding

STONE, J. In the case of Erwin v. Reese, decided at the last term, the record showed that the cause had been submitted in term time, on an agreement, entered of record, that the cause should be taken up and decided during the session of another named court, which would not, and did not sit, until after ninety days from the adjournment of the term at which the submission was made. Pursuant to the agreement, the cause was heard and determined at the agreed time and place. One assignment of error questioned the authority of the Chancery Court to hear and determine the cause after the expiration of the ninety days from the adjournment. Each member of this court was competent to sit, and did sit in that cause. We said: “ We do not think the legislature intended, by the act of December, 1878 [see Pamph. Acts, 58], to declare void orders and decrees, correct in themselves, made, by consent of parties, in vacation, although not within the time prescribed by its'terms.” We affirmed the decree in that cause. That decision was made to turn materially on section 717 of the Revised Code. While I agree that the judgment declared in that cause was correct, the decree having been rendered within the precise terms of the agreement, if it were an open question, I would feel inclined to doubt the correctness of the rule, when invoked in such ■ a case as this. In this cause, the submission was in term time, on written agreement signed, that the decree might be rendered in vacation, “under the statute.” The question, however, is one of practice only; and inasmuch as only two members of the court sit in this cause, I yield my doubts. A rule of practice, adhered to, can work but little inconvenience; while frequent changes tend to throw everything into confusion. A very forcible argument is made in support of the construction of the act of 1873, given in the case of Erwin v. Reese, supra, in this : that statutes enjoining official duty are generally construed as directory, unless they contain negative words or clauses. — See Commissioners’ Court of Limestone Co. v. Rather, 48 Ala. 433, and authorities in brief of counsel. The. chancellor has indorsed on the record in this cause a written waiver of the issue of a rule nisi, and a consent that, if this court decide that “the case made by the petition is a proper one for mandamus,” then “that the same may be ordered without the delay of intermediate orders.” The record before us contains all the material facts necessary to the decision of this motion. Under the authority of the case of Erwin v. Reese, supra, the chancellor erred in the decretal order of December 8th, 1875, vacating and annulling the de [461] cree of October 20th, 1874. A writ of mandamusis awarded, commanding and directing tbe chancellor of the Northern Division to vacate and annul the said decretal order of December 8th, 1875, and restoring thereby tbe decree of 20tb October, 1874. We have no parties before us against whom we can award costs. — 42 Ala. 563. Brickell, C. J., not sitting.