Ex parte Farquhar & Son , 99 Ala. 375 ( 1892 )

HEAD, J.

Tlie matter complained of in this ajjplication was virtually adjudicated by this court in the case of Seymour et al. v. Farquhar et al., 95 Ala. 527; 10 So. Rep. 650. It was there determined th at the Circuit Court, as a court in term time, had authority to order substitution of lost portions of the petition of Seymour and others for a rehearing, under the statute, Code, § 2872, et seq., and to allow amendments of the petition. The original petition was presented to the- judge of the Circuit Court within four months after the rendition of the judgment sought to be reheard. The judge acted upon it, and granted an order for a supersedeas, which he had authority to do under the statute. He took a step further, however, which was beyond his jurisdiction or authority, and granted the petitioners a re-hearing. Eor the manifest reason that the jurisdiction to finally hear and determine the petition, and grant or refuse the rehearing prayed is, by the statute, conferred upon the Circuit Court and not upon the judge, this court, upon mandamus, directed that the said action of the judge be vacated and set aside. Accordingly, on March 7th, 1891, Judge Sprott made an order setting aside the order for a supersedeas and rehearing which he had previously granted. He again, however, in the same order, took a further step, which was without his jurisdiction as a judge, and ordered that the petition be dismissed. This order of dismisal is attempted to be made one of the supports of the present petition for mandamus. It was manifestly void for want of authority in the judge to make it, and can exert no influence upon this proceeding. He could no more dismiss the petition than he could grant the relief it prayed, which we decided in the former mandamus proceeding he could not do. At the following term of the Circuit Court of Fayette County, the court made and entered an order dismissing the petition for re-hearing, and, on appeal to this court, that order was reversed, and the cause was remanded to the Circuit Court for further proceedings. The case, then, was one pending in the Circuit Court for its adjudication. While so pending, the court, at the Spring Term 1892, substituted certain alleged lost portions of the original petition and allowed certain amendments, both of which, we held in Seymour et al. v. Farquhar et al., supra, it had power to do. The substitution and allowance of the amendments, being lawfully granted, had relation to the time the original petition was presented to the judge, and became parts of that petition as and of that date.

We observe that in the former proceeding for mandamus the mandate of this court to the circuit judge was, inadvertently, we doubt not, made broad enough to require that he set aside the order for a supersedeas, as well as the order improperly granting a rehearing ; and it was accordingly set aside in obedience to that mandate. This being so, the petitioners for a re-hearing gave notice to the plaintiffs in judgment that they would, on a day named, apply to the judge for an order for a supersedeas. Both parties appeared before the judge on the day named, and the application was, as shown by recital in the judge’s entry, regularly continued until August 15th, 1892, when an order for a supersedeas was granted. "We do not doubt the authority of the judge in that behalf. Suspension of execution of the judgment was necessary pending the petition for a re-hearing, and the supersedeas previously granted having been set aside by the direction of this court,, we see no reason why the judge could not thereafter grant another. But whether such action was authorized or not, it could in no wise affect or impair the jurisdiction which the Circuit Court had acquired of the case made by the petition pending therein for a rehearing.

Much of the argument of petitioner’s counsel is addressed to supposed errors of the court in its rulings upon demurrers to the petition for re-bearing, and upon the pleas and evidence in the cause. These are questions which can not arise upon application for mandamus. If such errors intervened they could have been corrected on appeal. The petition for rehearing contained sufficient averments, under the statute, to confer upon the court jurisdiction of the subject-matter ; and the judgment rendered can not be set aside by mandamus for errors intervening upon the trial.

Mandamus denied.