Ex parte Dillard

BRIOKELL, C. J. The grant or refusal of a new trial is matter purely of discretion in the primary court. Upon the grant, or upon the refusal, the court may impose such terms or conditions as are deemed proper to advance the justice of the particular case. The party in whose favor the verdict is rendered, may be required as the condition upon which a new trial is refused, to relinquish a part of the sum found for him 597 by the verdict. Whether he will submit to the the condition is matter of choice with him. If he declines, the new trial will be granted, — or, if he consents, it will be refused, and the recovery reduced. Or the grant may be made upon condition that the party applying pay the costs which have accrued, or a specified part thereof. If the time within which the payment is to be made is not prescribed, the grant is conditional, haviug the effect to keep the cause in court until the next term ; and the payment of the costs at any time during vacation, or before the cause is regularly called for action at the next term, is a compliance with the condition, rendering the grant absolute.—Ex parte Lowe, 20 Ala. 330. But if a particular time is appointed for the payment of the costs, though it may .expire in vacation, the payment within the prescribed period is a condition precedent, with which there must be strict compliance. If there be not compliance within the appointed time, a subsequent payment can not restore vitality to the order or grant.—Ex parte Jones, 35 Ala. 706. Performance or non-performance rests wholly in the choice of the party, and if he fail or neglect performance within the appointed time, it is the equivalent of an election not to- accept' the new trial. If by the fault of the officer to whom the costs are payable,- -if he should exact more costs than were legally taxable, rendering it necessary that an application for a re-taxation of costs should be made to the court, there would be a prevention of performance, which would excuse and relieve the party obtaining the grant. But he must have offered to comply with the order within the appointed period. Without the offer of performance within that period, he is without right to claim relief from the condition, because of the fault or act of the officer. That fault or act can avail him, only when he has first put himself right, by tendering performance ata time when the officer was bound to accept it. Whether there was an offer of performance, and prevention of it by the act of the clerk of the court, would be material in this case, only upon the theory that the time within which the costs were required to be paid, is to be computed, not from the day the order was made, but from the day of the adjournment of the term at which it was made. The terms of the order are general; the new trial was granted “on the payment of the costs in sixty days, as a condition precedent.” There is no expression or indication of a purpose to prolong the day from which the sixty days are to be computed, until the expiration of the term. The term of the court is not with us regarded as one day ; and though until the term expires, the orders made, and judgments rendered, are largely 598 under the control of the court, and may be altered, modified, or vacated, yet, they have been generally regarded as taking effect from the day on which they were made or rendered, subject to the power of the court, and not from the day the term closes.—Ala. C. & N. Co. v. State, 54 Ala. 36. If it had been intended to postpone the day from which the sixty days were to be computed until the close of the term ; if it ha'd been intended that the order should have, in this respect, a different operation from that which a judgment of the court would have, there would be found some expression of the intention. The day on which the order was made, is the day from which the period within which the costs were to be paid, must be computed. The defendant not having paid, or offered to pay the costs within that period, by his own act lost the right to a new trial, and the cause should have been stricken from the docket. The rule nisi must be made absolute.