Montgomery Traction Co. v. Knabe

Supreme Court of Alabama

Montgomery Traction Co. v. Knabe

48 So. 501, 158 Ala. 458, 1908 Ala. LEXIS 654

CourtSupreme Court of Alabama

DecidedNovember 24, 1908

StatusPublished

Cited by21 cases

This text of 48 So. 501 (Montgomery Traction Co. v. Knabe) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Montgomery Traction Co. v. Knabe, 48 So. 501, 158 Ala. 458, 1908 Ala. LEXIS 654 (Ala. 1908).

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Opinions

DENSON, J.-

This cause was tried, and verdict and judgment were rendered for the plaintiff in the sum of $12,500, on the 14th day of June, 1907. The defendant entered its motion to set aside the verdict and that a new trial be granted. The record shows that this motion was heard and determined on Saturday, the 6th day of July, 1907, and that the court on that day, upon the plaintiff offering to remit so much of the judgment as was in excess of $10,000, overruled the defendant’s mo[460]*460tion, and rendered judgment against the defendant in the sum of $10,000. The record shows that it is from this latter judgment the present appeal is taken.

By an act of the General Assembly entitled, “An act to fix the time of holding the city court of Montgomery,” approved December 6, 1900 (Acts 1900-01, p. 122), it is provided that the city court of Montgomery shall hold three terms in each year, commencing, respectively, the first Monday in February, the first Monday in July, and the second Monday in October. By an act of the Legislature entitled, “An act to fix the time of holding the city court of Montgomery,” approved February 28, 1907, it is provided that the October term of the city court of Montgomery shall be held on the first Monday in October of each year, and shall continue until the Saturday before the second Monday in July following, and that “the July term of said court shall begin on the second Monday in July of each year and continue until the Saturday before the first Monday in October following unless sooner adjourned by an order thereof.” The latter act contains no repealing clause, but it is manifestly repugnant to the act of December 6, 1900. There is absolutely no field of operation for both acts, and the conclusion inevitably follows that it was the intention of the Legislature that the act of February 28, 1907, should operate as a substitute for the act of December 6, 1900. Therefore the act of December 6,1900, is repealed by implication. — City Council of Montgomery v. National, etc. Ass’n, 108 Ala. 336, 18 South. 816. The effect of the act of February 28, 1907, was to convert the city court from a court of three terms to one of two terms, with the 'October term beginning on the ifirst Monday in October and continuing until the Saturday before the second Monday in July following, and the July term beginning on the second Monday in July. By the act [461]*461of February 28, 1907, no time is fixed for its taking effect, and it therefore became operative from the day of its approval. — 4 Mayfield’s Dig. 856.

From the foregoing considerations it follows that the term at which the instant cause was tried was extended until the Saturday before the second Monday in July, which was July 6,1907. This being true, then according to the language of the statute and to previous decisions of this court that term ended, by operation of law, at 12 o’clock, Friday night, July 5, 1907. According to this construction, Saturday, the 6th, was not in term time, and consequently the session of the court held on that day was held at a time not authorized by law; and judgments and orders purporting to have been rendered and made on that day are void. — Johnson's Case, 141 Ala. 7, 37 South. 421, 109 Am. St. Rep. 17; Richardson’s Case, 142 Ala. 12, 39 South. 241. If, however, by any rule of construction, it could be said that the term at which the cause was tried was not affected by the act, then that term expired by operation of law (Act Dec. 6, 1900) on the Saturday before the first Monday in July, 1907, and this would throw the entire week, including Saturday, July 6th, out of term time, because there can be no doubt that the July term, 1907, commenced by law (Act Feb. 28, 1907) on the second Monday of that month, and not earlier. So that in either view it must follow that what purports to be a judgment entered on July 6, 1907 (that appealed from), is void, and will not support an appeal. Therefore the appeal must be dismissed. — Kidd v. Burke, supra.

Appeal dismissed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.

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DENSON, J.-

This cause was tried, and verdict and judgment were rendered for the plaintiff in the sum of $12,500, on the 14th day of June, 1907. The defendant entered its motion to set aside the verdict and that a new trial be granted. The record shows that this motion was heard and determined on Saturday, the 6th day of July, 1907, and that the court on that day, upon the plaintiff offering to remit so much of the judgment as was in excess of $10,000, overruled the defendant’s mo[460]*460tion, and rendered judgment against the defendant in the sum of $10,000. The record shows that it is from this latter judgment the present appeal is taken.

By an act of the General Assembly entitled, “An act to fix the time of holding the city court of Montgomery,” approved December 6, 1900 (Acts 1900-01, p. 122), it is provided that the city court of Montgomery shall hold three terms in each year, commencing, respectively, the first Monday in February, the first Monday in July, and the second Monday in October. By an act of the Legislature entitled, “An act to fix the time of holding the city court of Montgomery,” approved February 28, 1907, it is provided that the October term of the city court of Montgomery shall be held on the first Monday in October of each year, and shall continue until the Saturday before the second Monday in July following, and that “the July term of said court shall begin on the second Monday in July of each year and continue until the Saturday before the first Monday in October following unless sooner adjourned by an order thereof.” The latter act contains no repealing clause, but it is manifestly repugnant to the act of December 6, 1900. There is absolutely no field of operation for both acts, and the conclusion inevitably follows that it was the intention of the Legislature that the act of February 28, 1907, should operate as a substitute for the act of December 6, 1900. Therefore the act of December 6,1900, is repealed by implication. — City Council of Montgomery v. National, etc. Ass’n, 108 Ala. 336, 18 South. 816. The effect of the act of February 28, 1907, was to convert the city court from a court of three terms to one of two terms, with the 'October term beginning on the ifirst Monday in October and continuing until the Saturday before the second Monday in July following, and the July term beginning on the second Monday in July. By the act [461]*461of February 28, 1907, no time is fixed for its taking effect, and it therefore became operative from the day of its approval. — 4 Mayfield’s Dig. 856.

From the foregoing considerations it follows that the term at which the instant cause was tried was extended until the Saturday before the second Monday in July, which was July 6,1907. This being true, then according to the language of the statute and to previous decisions of this court that term ended, by operation of law, at 12 o’clock, Friday night, July 5, 1907. According to this construction, Saturday, the 6th, was not in term time, and consequently the session of the court held on that day was held at a time not authorized by law; and judgments and orders purporting to have been rendered and made on that day are void. — Johnson's Case, 141 Ala. 7, 37 South. 421, 109 Am. St. Rep. 17; Richardson’s Case, 142 Ala. 12, 39 South. 241. If, however, by any rule of construction, it could be said that the term at which the cause was tried was not affected by the act, then that term expired by operation of law (Act Dec. 6, 1900) on the Saturday before the first Monday in July, 1907, and this would throw the entire week, including Saturday, July 6th, out of term time, because there can be no doubt that the July term, 1907, commenced by law (Act Feb. 28, 1907) on the second Monday of that month, and not earlier. So that in either view it must follow that what purports to be a judgment entered on July 6, 1907 (that appealed from), is void, and will not support an appeal. Therefore the appeal must be dismissed. — Kidd v. Burke, supra.

Appeal dismissed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.

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48 So. 501, 158 Ala. 458, 1908 Ala. LEXIS 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-traction-co-v-knabe-ala-1908.

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