Harper Plastics, Inc. v. Replex Corp.

382 So. 2d 556, 1980 Ala. LEXIS 2780

Opinion

ALMON, Justice.

This is an appeal from a judgment denying appellant’s post trial motion entitled “motion for relief from judgment.” While not designated as such, this motion is clearly one under Rule 60, ARCP.

The motion sought to have the trial court set aside a final money judgment rendered against the appellant on January 30, 1979. The basis of the motion was that the trial court committed error in failing to grant appellant a continuance. Appellant had sought the continuance because certain witnesses allegedly could not be present on trial date.

The appellant did not appeal from the final money judgment, nor did it file a motion for new trial. All of the pertinent facts were known at the time the court denied the motion for continuance.

Rule 60, ARCP, is not a substitute for an appeal. Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App.), cert, denied, 348 So.2d 1065 (Ala.1977); Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976).

Because the claim of error was not timely presented, the judgment of the circuit court denying the post-trial motion is affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, SHORES and EMBRY, JJ., concur.