Ketchum v. Dennis , 41 Ala. 183 ( 1867 )

JUDGE, J.

A material difference exists, between an application for a re-hearing under section 2407 or 2408 of the Code, and an application for a new trial under the ordinance of the State convention, adopted September 28, 1865. An application for a re-hearing, under the Code, must be by petition, in which the matter complained of must be stated, with a prayer for the appropriate relief; and the court may direct the trial of all questions of fact by a jury, upon an issue made up under its direction. Such a proceeding contains more of the elements of an original action, than of a motion for a new trial, and bears a greater similitude to the former than to the latter. Hence, it has been held by this court, that a proceeding under the Code must be regarded as a new action, the object of which is to obtain a re-hearing and trial on the merits in the original action; consequently, appeals from final judgments in such proceedings have been entertained.—Pratt & McKenzie v. Keils & Sylvester, 28 Ala. 390; White v. Ryan & Martin, 31 Ala. 400; Shields v. Burns, ib. 535 ; Garrett & Bibb v. Terry, 33 Ala. 514; Davis v. McCampbell, 37 Ala. 609; Elliott v. Cook, 33 Ala. 490; Stewart v. Williams, 33 Ala. 492.

The ordinance of the convention provides that, “ in all cases in which judgments er decrees have been rendered, in all courts of record in this State, since the 11th January, 1861, and prior to the date of this ordinance, the party against whom such judgment has been rendered shall be entitled to a new trial, upon affidavit that he was unavoidably absent from the court at the time of the rendition of the judgment, and that he had no attorney present in the court; Provided, the court shall be satisfied, from all the facts that may be submitted by affidavit by both parties, that a good and meritorious defense exists.” — Ordinance, No. 26. As will be perceived, no proceeding for relief against a judgment or decree, under the provisions of this ordinance, can be any other than a mere motion for a new trial. Judgments and decrees had doubtless been rendered during the war, against parties at the time unavoidably absent ; and we think it was intended by the convention, that every such party should be placed in a condition, as regards a new trial, as favorable as that which he would have occupied, had he been present, in person or by attorney, when the judgment or decree was rendered. Had such a party been thus present, he might, before the expiration of the term, have moved the court for a new trial; but no appeal from the decision of the court on the motion could have been taken by either party; for it has been the settled law of this State, for a period of more than forty years, that decisions on motions for new trials are matters within the judicial discretion of the presiding judge, and not revisable on error.—Phleming v. The State, Minor, 42; Shepherd’s Digest, 698, § 9. It follows, that no appeal will lie from a decision and motion for a new trial, when the motion is made pursuant to the ordinance of the convention. To hold otherwise, would be to overturn a long- established rule, founded in wisdom, and beneficial in its results.

Appeal dismissed.