Opinion
8 Div. 430.
July 27, 1972.
Appeal from the Circuit Court, Madison County, David R. Archer, J.
Camp, Page, Williams Spurrier, Huntsville, for appellant.
An order granting a new trial must be filed or deposited with the clerk of the trial court within thirty days from the date on which the judgment or decree was rendered, or within the time fixed by an order of continuance of such motion; otherwise, the motion for a new trial is beyond the jurisdiction of the court and an order granting same is void. Mt. Vernon-Woodberry Mills v. Union Springs Guano Company, 229 Ala. 91, 155 So. 716; Central of Ga. R. R. Co. v. McDaniel, 262 Ala. 227, 78 So.2d 290. The record must contain a showing or statement of submission or order of continuance, made prior to or on the last date fixed by an order of continuance of a motion for a new trial; otherwise, such motion is discontinued. Holman v. Baker, 277 Ala. 310, 169 So.2d 429; Moving Picture Machine Operators Local No. 236, et al v. Cayson, 281 Ala. 468, 205 So.2d 222; Denson v. State, 43 Ala. App. 243, 187 So.2d 574. An order granting a new trial made on a motion seeking same, when said motion is beyond the power and jurisdiction of the court, is void and functus officio. Shelley v. Clark, 267 Ala. 621, 103 So.2d 743; Tippett v. Tippett, 274 Ala. 18, 145 So.2d 185; Central of Ga. Railway Co. v. McDaniel, Supra.
No brief from appellee.
This is an appeal from an order granting plaintiff's motion for a new trial, or in the alternative, a petition for writ of mandamus to review the same action.
The underlying cause of action arose out of an automobile accident. Plaintiff appellee) sued the defendant for damages and the jury returned a verdict in favor of the defendant. Chronogically the following occurred:
A final judgment on the jury verdict was entered on June 12, 1970. Plaintiff's motion for new trial was filed on July 9, 1970, and continued by order to August 3, 1970. On July 31, 1970 an order of continuance was entered setting the hearing on the motion for August 21, 1970. No further entries appear in the record until September 1, 1970, on which date an order granting the plaintiff's motion for new trial appears to have been entered. It is the propriety of this order that the defendant (appellant) questions here.
Under the provisions of Tit. 13, § 119, Code, it is clear that the trial court no longer had jurisdiction over the original proceeding at the time of the entry of the order granting the motion for new trial. Without an order further continuing the motion for hearing beyond August 21, 1970, the court lost jurisdiction of the matter after that day, and the motion for new trial was discontinued at that time. All American Life and Casualty Co. v. Dillard, 287 Ala. 673, 255 So.2d 17. In that case a motion for new trial was presented to the trial judge on April 19, 1968, at which time the judge entered an order continuing the motion for hearing on May 15, 1968. No further orders appeared until June 20, 1968, when the court entered its judgment overruling the motion. This court said:
"This action of the trial court was without legal authority for that motion was discontinued. Title 13, § 119, Code of Ala., Recompiled 1958; Moving Picture Machine Operators Local No. 236, et al. v. Cayson, 281 Ala. 468, 205 So.2d 222(14); Moore v. Ashe, 269 Ala. 359, 113 So.2d 678."
This court characterized the trial court's action on the motion for new trial as being invalid and without legal significance.
In Barnes v. Evans, 267 Ala. 236, 101 So.2d 331, a judgment entered 38 days after the initial judgment with no intervening order showing that the court had retained jurisdiction was said to be void and incapable of supporting an appeal. It follows, therefore, that the petition for writ of mandamus which was filed in this cause is appropriate (Ex Parte Phillips, 231 Ala. 364, 165 So. 80; Holden v. Holden, 273 Ala. 85, 134 So.2d 775), and is hereby granted, directing the trial court to vacate its order of September 1, 1970 granting a new trial.
Appeal dismissed; writ granted.
HEFLIN, C. J., and MERRILL, COLEMAN, BLOODWORTH, and McCALL, JJ., concur.