Walker v. Jefferson

5 Ark. 23

• Court: Supreme Court of Arkansas
• Decided: January 15, 1843
• Status: Published

Opinion

By the Court,

Paschal, J.

The whole proceedings are exceedingly irregular, and the judgment thus rendered is certainly illegal. It is exceedingly doubtful whether the Circuit Court possesses the power to give a party to a subsequent term to show cause against the granting of a new trial. We regard such a practice as irregular, and one which should not be indulged, unless there were peculiar circumstances justifying it. Such a practice íb certainly in contravention of the practice governing the Circuit Courts, as prescribed in the Revised Statutes, p. 637, sec. 132.

It is perfectly clear, however, that the Court has no power over the cause, should the term at which the motion was to have been heard, expire (as in this instance) without any steps being taken. It was held by this Court, in Smith vs. Dudley, 2 Ark. Rep. 66, “ that when judgment has been pronounced, and the term at which it was given has finally expired, neither the Court nor the parties to the record have any longer any control over it.” There was no entry in this case showing any disposition of the cause at the term at which the rule to show cause against the new trial was to have been heard and determined; and, consequently, at the term thereafter, the Court possessed no authority whatever to revive a rule which had expired by its own limitation, at a former term. The rule was finally lost and destroyed, when the term expired at which it was to have been heard; and it could not afterwards be revived or brought into being by any assumed power over it; much less could the Court go on to set aside the new trial previously granted, and enter a nolle prosequi as to two defendants, and render a judgment as to the other four. The whole proceeding was unwarranted by any principle of law or practice.

Judgment reversed.