Opinion
6 Div. 801.
January 23, 1936.
Original petition of the Three Minute Cereal Company for mandamus to J. Russell McElroy, as Judge of the Circuit Court, Jefferson County.
London, Yancey, Smith Windham and Al. G. Rives, all of Birmingham, for petitioner.
A party who accepts a continuance of a cause thereby accepts the terms and conditions imposed by the court in granting it, and cannot afterwards complain that the court exceeded its power. 13 C.J. 194; McLaughlin v. Beyers, 175 Ala. 544, 57 So. 716; Humes v. O'Bryan, 74 Ala. 64; Rhea v. Tucker, 56 Ala. 450. If the party desires to contest the validity of an order imposing terms as a condition of granting him a continuance, he should refuse to accept the continuance and except to the ruling of the court. 13 C.J. 194; McLaughlin v. Beyers, supra; Lewis v. Wood, 42 Ala. 502. Independent of statutory authority, a court having discretionary power to grant or refuse a continuance on request of a party has power to impose terms as a condition to granting it, and the court is not limited to requiring payment of costs. 13 C.J. 192, 193, 194; Gowen v. Jones, 20 Ala. 128; Dudley v. Witter, 51 Ala. 456.
Taylor Higgins, of Birmingham, for respondent.
The authority to grant or refuse a continuance of a pending cause resides in the court and not in the judge. An application for continuance is addressed to the sound discretion of the court, and will not be reviewed unless such discretion is grossly abused, and then only on appeal where the facts may be fully presented. Morris v. McElroy, 219 Ala. 369, 122 So. 608; Birmingham v. Banks, 228 Ala. 295, 153 So. 189. While the court may impose terms as a condition of continuance, it cannot superadd conditions, at a subsequent term of court, to which the party had not consented. Montgomery W. Plank-Road Co. v. Persse, 25 Ala. 536; Dunlap v. Horton, 49 Ala. 412; Ex parte Abrams, 48 Ala. 151. Where a continuance is granted upon terms, it is within the discretion of the court as to whether or not to enforce the terms. Weir v. S. J. T. Clark, 4 Ala. App. 302, 58 So. 793. The order of October 26, 1933, was not sufficient to constitute a conditional continuance. Ex parte Abrams, supra; Alexander v. Moore, 111 Ala. 410, 20 So. 339.
Petitioner insists (as the main question in the case) that the order of continuance entered October 26, 1933, was valid, and that plaintiff in the action, having accepted the continuance on the conditions therein stated, cannot thereafter question its validity. Humes v. O'Bryan Washington, 74 Ala. 64; McLaughlin v. Beyers, 175 Ala. 544, 57 So. 716.
But this does not answer the exigencies of petitioner's case. Though indefinite both as to amount and time of payment, yet for the purpose in hand the validity of the order may be conceded. It was not, however, an order on condition (Ex parte Abrams, 48 Ala. 151), but one imposing terms only. And it may further be conceded that plaintiff, having accepted the continuance on the terms stated in the order, would have no legal right to question its validity. But plaintiff is not placed in the attitude of such an attack. The order of continuance entered was that of the court, and not the judge (Morris v. McElroy, 219 Ala. 369, 122 So. 608), and it is of course well understood that the extraordinary remedy of mandamus is only to be granted when there is a clear specific legal right shown, for the enforcement of which there is no other adequate remedy. Ex parte Smith, 228 Ala. 232, 153 So. 152.
As previously observed, the order was one imposing terms only, and the granting of petitioner's prayer for relief in the instant case would be paramount to a denial of the court at a subsequent term to exercise a sound discretion as to whether or not the terms of the order should be modified, or else result in a holding that such modification by the court would be a gross abuse of discretion. Morris v. McElroy, supra; City of Birmingham v. Banks, 228 Ala. 295, 153 So. 189.
Clearly no abuse of discretion is made to appear, and that the court at a subsequent term may make such modification in the exercise of a sound discretion, is, we think, established by our decisions. Rhea v. Tucker, 56 Ala. 450; Torrey v. Bishop, 104 Ala. 548, 16 So. 422. See, also, 13 Corpus Juris, 195; Weir v. S. J. T. Clark, 4 Ala. App. 302, 58 So. 793.
The principle recognized, therefore, in Humes v. O'Bryan Washington, supra, and McLaughlin v. Beyers, supra, is here without application. The question is one, not of plaintiff's legal right to avoid the order, but of the power of the court, in the exercise of a sound discretion, to subsequently modify its terms.
Other theories for a denial of the writ are here argued, but consideration thereof is pretermitted, as the foregoing views are conclusive of the case against petitioner upon the merits.
It results that the writ will be denied.
Mandamus denied.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.