Robershaw v. Woods

184 So. 2d 355, 279 Ala. 274, 1966 Ala. LEXIS 995

• Court: Supreme Court of Alabama
• Decided: March 17, 1966
• Docket: 7 Div. 721
• Status: Published

Opinion

LAWSON, Justice.

Epicy’M. Cole Robershaw appealed to this court from a judgment of the Circuit Court of Calhoun County granting a new trial to Lois P. Woods, who had been permitted to intervene in a cause filed by Robershaw against E. J. Woods.

The cause was submitted here on the merits and on appellant’s motion for alternative writ of mandamus.

The motion for new trial was filed within thirty days from the date on which the original judgment was rendered. The judgment granting the new trial is appeal-able. § 764, Title 7, Code 1940, as amended; Sadler v. Sessions, 261 Ala. 323, 74 So.2d 425.

The judgment granting the new trial being appealable, the motion for alternative writ of mandamus is denied.

The only reason advanced for a reversal of the judgment granting a new trial is that a “petition for rehearing should be dismissed where' it was not sworn to and record did not show any attempt to give Plaintiff 10 days notice nor serve him with a copy of petition.” In support of the proposition 'just quoted, appellant cites § 280, Title 7, Code 1940. The provisions of § 280, supra apply only to petitions for rehearing filed under the provisions of §§ 278 and 279, Title 7, Code 1940. The motion for new trial in this case was filed within thirty days of the entry of the original judgment, as authorized by § 276, Title 7, Code 1940, as amended.

We are not aware of any requirement that a motion for new trial filed under § 276, supra, be verified or that the adverse party be given ten days notice of the fact that such a motion is to be filed'. However,' the record in this case shows that the attorney who represented' the plaintiff, appellant, in the trial below was timely served with a copy of the motion for new trial.

The judgment appealed from is affirmed.

Affirmed.

LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.