Wood Dickerson Supply Co. v. Cocciola

45 So. 192, 153 Ala. 555, 1907 Ala. LEXIS 183

Opinion

ANDERSON, J.

— Section 2806 of the Code of 1896, providing for additional time to bring a second action after the arrest or reversal of a judgment upon an appeal, has been heretofore construed by this court as applying only to actions at law, and not suits in chancery. —Morrison v. Stevenson, 69 Ala. 448; Roland v. Logan, 18 Ala. 307. This statute has been repeatedly adopted by the Legislatures without the slightest change. “It is a settled rule that in the adoption of the Code the Legislature is presumed to have known the fixed judicial construction pre-existing statutes had received, and the substantial re-enactment of such statutes is a legislative adoption of that construction.” — Morrison v. Stevenson, supra; Duramus v. Harrison, 26 Ala. 326; Ex parte Banks, 28 Ala. 28; Stallworth v. Stallworth, 29 Ala. 76; Bank of Motile v. Meagher, 33 Ala. 622.

' Section 674 of the Code of 1896 does not apply to the extension of time given to bring a second action at law under section 2806. Nor do the cases of Dunham Land Co. v. Holt, 124 Ala. 181, 27 South. 556, and Conner v. Smith, 88 Ala. 311, 7 Southt. 150, apply to this question, as section 2806 was not involved in either case, and what was said as to the application of limitations and exceptions by the statute, and by analogy to suits in chancery, could not have referred to said section, which had been previously interpreted as applicable only to actions at law.

The decree of the city court is affirmed.

Tyson, C. J., and Denson and McClellan, JJ., concur.