Opinion
6 Div. 47.
June 18, 1942. Rehearing Denied October 8, 1942.
Certiorari to Court of Appeals.
Petition of W. H. Merritt for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Merritt v. Carter, 30 Ala. App. 506, 9 So.2d 778.
Writ denied.
Chas. W. Greer, of Birmingham, for the petition.
Appellant is estopped to sustain the grounds of her motion to strike, because to permit her to do so would permit her to show the invalidity of the order continuing the motion for a new trial to a day certain after she had expressly consented to the entry of said order. Brown v. French, 159 Ala. 645, 49 So. 255; Wright v. Fannin, 229 Ala. 278, 156 So. 849; Farmers' Bank v. Gibson, 21 Ala. App. 389, 108 So. 628; Richards v. Shepherd, 159 Ala. 663, 49 So. 251; Scharfenberg v. New Decatur, 155 Ala. 651, 49 So. 95; Ray v. Hilman, 229 Ala. 424, 157 So. 676; First Nat. Bank of Mobile v. Burch, 237 Ala. 680, 188 So. 859. Appellee having acquiesced in the order of continuance of the motion for new trial, and having recognized the Court's power to proceed, she cannot at a later date take a contrary position and insist that the order was void so as to affect the time for filing bill of exceptions. Lynch v. Collings, 7 Alaska 84; Hill v. Hooper, 21 Ala. App. 584, 110 So. 323; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14. Where party consents and agrees to entry of void order, with knowledge of its invalidity, and accepts the benefits of it, he will not be later permitted to repudiate it, especially when injury to his adversary would result. Bledsoe v. Seaman, 77 Kan. 679, 95 P. 576; Schutte's Appeal, 90 Conn. 529, 97 A. 906. If the bill of exceptions was presented and filed within 90 days from the date appellee is in a position to question the facts that a motion for new trial was outstanding and not ruled on — on which she may in equity and good conscience question the trial court's jurisdiction over the motion — then the bill of exceptions was presented and filed in time. Childers v. Samoset Mills, 213 Ala. 292, 104 So. 641.
F. D. McArthur and Hal W. Howard, both of Birmingham, opposed.
The order made could not give a void motion validity. The bill of exceptions was properly stricken. Ex parte Margart, 207 Ala. 604, 93 So. 505.
It is not necessary for the purposes of this case to consider the question of whether the interested parties to a judgment at law can by agreement expressed or implied confer power upon the court to entertain a motion for a new trial made after the expiration of thirty days from the date of its rendition. On this question we refer to McCord v. Rumsey, 19 Ala. App. 62, 95 So. 268, certiorari denied Ex parte Rumsey, 209 Ala. 20, 95 So. 269. Section 6670, Code of 1923, Code 1940, Tit. 13, § 119, did not permit a motion to be made and heard after the term of the court as provided in section 6667, Code of 1923, Code 1940, Tit. 13, § 114, though within thirty days after the judgment was rendered. Morris v. Corona Coal Co., 215 Ala. 47, 109 So. 278.
It is sufficient here to say that the mere presence of plaintiff's counsel when the motion was continued to June 7, 1941, as recited in that order, is not such an acquiescence in the continued force of the motion as to prevent plaintiff from contending that since the motion was neither granted nor refused, it did not serve to extend the time for signing the bill of exceptions. Code of 1923, section 6433, Code of 1940, Title 7, section 822; Stallings v. Clark, 218 Ala. 31, 117 So. 467; Folmar v. First National Bank, 223 Ala. 625, 137 So. 777; Cain v. Jefferson Standard Life Ins. Co., 227 Ala. 458, 150 So. 689.
The writ of certiorari is therefore refused.
Writ denied.
All the Justices concur, except KNIGHT, J., not sitting.