First Nat. Bank of Birmingham v. Garrison , 235 Ala. 687 ( 1938 )

For more than a century it has been settled by the decisions of this court that: "The judgments of courts are in the breast of the judge until the final adjournment of the term." Desribes v. Wilmer, 69 Ala. 25, 44 Am.Rep. 501; Neale et al. v. Caldwell, 3 Stew. 134; Browder v. Faulkner, 82 Ala. 257,3 So. 30; Tippins v. Peters, 103 Ala. 196, 15 So. 564; Ex parte Favors, 225 Ala. 675, 145 So. 146; Ex parte Howard, Howard v. Ridgeway et al., 225 Ala. 106, 142 So. 403; Garrison v. First National Bank of Birmingham, 233 Ala. 687, 173 So. 88, 90; Prudential Savings Bank of Birmingham v. Looney, 187 Ala. 19,65 So. 770, 771; Roebling Sons Co. v. Stevens Electric Company,93 Ala. 39, 9 So. 369.

In Neale et al. v. Caldwell, supra, decided July, 1830, one of the questions presented, as stated in the language of the opinion, was: "3rd. Can a Circuit Court, during the term, reconsider one of its decisions, and correct an error of judgment which it has committed?" Answering this question the court observed:

"With regard to the third point, there can be no doubt of the power of the Court to amend or correct its judgments during the continuance of the term in which they have been pronounced.

"Whenever a point of law or a fact is presented for the decision of the Court, and the opinion then pronounced is at any subsequent period of the term deemed to have been incorrect, the Court may direct the former judgment to be set aside, and one to be entered conforming to what is believed to be right." 3 Stew. 134, 139.

In Desribes v. Wilmer, supra, December term, 1881, the court speaking through Stone, J., observed: "The judgments of courts are in the breast of the judge until the final adjournment of the term, and may be set aside or modified during the term; and unless the court in such order violate some rule of law, or pronounce a judgment the law will condemn, it is no error that such ruling was made without notice to the opposite party. An order improperly granted, should be set aside, if the error be discovered during the term; and, if necessary, we would presume counsel continued present in the court, until the order of revocation was passed."

In Prudential Savings Bank of Birmingham v. Looney, supra, decided June 3, 1914, the court, speaking through the present Chief Justice, observed: "The trial court had the right, during the term of the dismissal, to reinstate the case upon motion and a proper showing by the plaintiff. The judgment reinstating the cause recites that the plaintiff had made a motion to set aside the order of dismissal and reinstate the cause, and presumptively the rules of practice as to the notice of the motion were observed and the reinstatement of the case, during the existing term, placed the parties just where they were before the case was dismissed, and the garnishee was not finally discharged by the order of dismissal, as the cause wasstill within the control of the court. The case of Burgin v. Ivy Co., 127 Ala. 657, 29 So. 67, has no application to the reinstatement of the present case as that case dealt with a judgment in the justice court, wherein an attempt had been made to revive a judgment no longer in fieri. Here the matter was in fieri until the expiration of that term of the circuit court." Italics supplied. 187 Ala. 19, 24, 25, 65 So. 770, 771.

In Ex parte Favors, supra, decided December 22, 1932, invoking the power of the court to set aside a decree, the court, speaking through Bouldin, J., observed: "During the thirty-day period the cause is within the breast of the court,with full power to vacate the decree on application or ex meromotu." (Italics supplied.)

On the former appeal, in the case at bar, it was held:

"Figuratively the judgment of the court of November 22, 1934, was in the breast of the court and within its plenary power for thirty days after its rendition — still in fieri." Garrison v. First National Bank of Birmingham, supra.

It is on this point that the opinion of Justice BOULDIN proposes to modify or overrule the opinion on the second appeal.

The statute cited, in support of our former ruling, Code 1923, § 6670, provides: "After the lapse of ten days from the rendition of a judgment or decree, the plaintiff may have execution issued thereon, and after the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed, and called to the attention of the court, and an order entered continuing it for hearing to a future day."

And section 7797, provides: "Upon the rendition of judgment, execution may be issued by leave of the court before the time prescribed in section 7795 (4079) for the issuing of executions, the plaintiff, his agent, or attorney, showing sufficient cause therefor by affidavit; but the defendant is not prevented thereby from moving for a new trial, or in arrest of judgment, nor deprived of any right he would otherwise have had."

The proposed opinion adopts the ten days first mentioned in the statute, Code, § 6670, by analogy, as the time during which the garnishee may not pay out money on an erroneous order discharging it, rather than the thirty days during which the order remains within the breast of the judge or court. The clear effect of the proposed opinion is not only to overrule the opinion on the second appeal, but to ignore the rule of the cases cited above, which has stood as the settled law for more than a hundred years.

The statute, Code 1923, § 6667, was amended March 26, 1936, and now provides: "The Circuit Courts of the several Counties of the State shall be open for the transaction of any and all business, or judicial proceedings of every kind, at all times." Acts 1936, Ex.Sess., p. 32. The effect of this amendment is to fix as to each judgment or decree a term or period of thirty days, within which the courts retain the power and authority to set aside or vacate such judgment or decree. Ex parte Howard, Howard v. Ridgeway, supra; Ex parte Favors, supra.

The record shows that the plaintiff in the case at bar without faltering pursued his remedy, as prescribed by the statute, and the rules of practice; that he filed his security for cost of appeal from the erroneous order discharging the garnishee, within the thirty days, and before the circuit court's power had expired, and on his appeal the erroneous order discharging the garnishee was reversed. By this course the continuity of the proceeding was preserved and the controversy remained sub judice.

All persons are presumed to know the law as thus declared, whether they did or not, and when the garnishee paid out the funds in its hands as a stakeholder on the erroneous order which it actively procured, it must be held to have done so at its own risk.

Our judgment is that the decision of the court on the second appeal is sound, and is here and now reaffirmed, with the result that the judgment of the circuit court entered in agreement with the mandate issued thereon must be and is affirmed.

ANDERSON, C. J., and THOMAS, FOSTER, and KNIGHT, JJ., concur.

GARDNER and BOULDIN, JJ., concur in the result.