Walker v. Hale

16 Ala. 26

Opinion

DARGAN, J.

A court cannot grant a new trial, after the. term is closed, at which the cause was tried, unless a motion during the term be made, and for some cause continued until the next term; but if the motion is made, the legal effect of it is to retain the matter for that purpose, under the control of the -court. The cause is said still to be in fieri, by reason of the motion; and the court may make any order afterwards that may be proper. Reese v. Billings, 9 Ala. 263; 3 Ala. 746; Stephenson v. Mansony, 4 Ala. 317. Yet there must be an end of litigation, and a time must come when the power of the court over the judgment must cease, notwithstanding the motion may not have been disposed of. If, instead of pressing for the action of the court on the motion, the party takes a writ of error to the Supreme Court, and the cause is there heard' and determined, and the judgment is affirmed, the judgment is final, and the inferior court no longer retains- the power to grant a new trial. The Orphans’ Court had no authority to grant the motion, if it was made to appear that the final decree probating the will had been affirmed by this court.

But a writ of error is not the proper remedy to correct the erroneous act of the county Judge. This writ can only be issued to revise a final sentence, judgment, or decree. The .granting of a new trial is neither of these.

Let the writ of error be dismissed.