Marx v. Barbour Plumbing & Elec. Co. , 10 Ala. App. 404 ( 1914 )

PELHAM, J.

The distinction between the case of McLeod v. Shelby Iron Co., 108 Ala. 81, 19 South. 326, cited by appellants, and relied upon as authority for reversing this case, and the instant case, is that in the former case there Avas an affidavit on file before the trial court on the hearing of the motion for a neAV trial that Avas not controverted, shOAving that the counsel in that, case “could have been present at the court Avhen the case Avas reached if he had availed himself of the ordinary and usual mode of travel,” that he failed to avail himself of the means at hand; and it was held that this dereliction to duty in failing to use ordinary care and due diligence in being present at the trial was not the exercise of that diligence exacted by the law at the hands of one asking for a new trial based on the ground of his absence from the court at the time the case was tried and judgment rendered aginst the party represented by him. In' the case under consideration it was shown to the court on the hearing of the motion, without contradiction, that counsel was unable to be present becanse, at the time the case was called for trial and dismissed, he, and each member of the firm, was actively engaged in the trial of cases in other courts being held in the city of Birmingham. Upon this showing being made, and the court being further apprised of the additional fact that counsel had endeavored to. have the court informed of the situation before the case was called and dismissed, by communication through the clerk of the court, and upon the further showing that the plaintiff had a meritorious cause of action, the court, in the exercise of a sound discretion, and probably not unmindful of the fact that courts should not favor the dismissal of cases, thereby denying to the parties litigant the right to adjudicate their differences, and have their rights passed upon in the courts, granted the appellee’s motion to set aside the former order of dismissal, and restored the case to the docket for trial on its merits.

We have considered the question undertaken by appellant to be presented, and have pointed out and discussed the plain distinction and difference between the case cited by appellants (McLeod v. Shelby Iron Co., supra) and the case under consideration; but in our opinion the language of the statutes authorizing an appeal from an order or judgment refusing or granting a new trial cannot be made to apply to a case like this, where there has in fact been no trial of the cause, but only an order of dismissal for want of prosecution, which was subsequently set aside at the same term of the court, and that the appeal must be dismissed, as no appeal lies from the order setting aside the former order of dismissal for want of prosecution. — Code, § 2846; Acts 1911, p. 198; Truss v. Birmingham, etc., R. R. Co., 96 Ala. 316, 11 South. 454; Haygood v. Tait, 126 Ala. 264, 27 South. 842; Ledbetter & Co. v. Vinton, 108 Ala. 644, 18 South. 692; Western Ry. of Ala. v. Wallace, 170 Ala. 584, 54 South. 533.

The order restoring the case to the docket may not result in a judgment against the defendant on the merits, and, even if so, the proper time to review such a ruling would be on appeal from the final judgment.— Roy v. L. & N. R. R. Co., 9 Ala. App. 377, 63 South. 772. Moreover, the order granting the motion, and reinstating the case to the docket, was made conditional on the payment by the movement (appellee) of certain costs, and for aught appearing to the contrary, as shown by the transcript, the condition precedent to granting the motion has never been complied with, and the original judgment remains intact.

Appeal dismissed.