Cleveland v. Little Cahaba Coal Co. , 205 Ala. 369 ( 1921 )

The record shows that judgment was rendered for plaintiff in the justice's court on August 14, 1920, and that defendant filed his appeal bond on the same day. On August 17, 1920, the justice certified the transcript and proceedings, which were duly filed in the office of the circuit clerk on August 17, 1920. The cause was thereupon placed on the trial docket, and was set for trial on August 25, 1920. On August 26, 1920, on motion of plaintiff, the court ordered that the cause be set for trial on September 13, 1920, on which date the trial was had. Defendant duly objected to the making of the latter order, and again duly objected to the trial of the cause on the day set, on the ground that it was improperly on the docket, and that it was not triable until the next term of the court.

Defendant's contention is based upon the provisions of section 4720 of the Code, that cases appealed from justices' courts —

"must be tried at the first term thereafter, if the five days' notice * * * required by law has been given, * * * unless good cause be shown for a continuance; but if such notice has not been given, the cause must be continued to the next term."

Since the passage of the act approved September 22, 1915 (Gen. Acts 1915, pp. 707, 708), providing that circuit courts shall be open for all purposes throughout the year, except during periods of a week or two near the end of June and near the end of December, respectively, the provisions of section 4720 of the Code have been rendered inapt and inoperative in so far as they deal with terms of court as held under the former system. That act was intended to expedite the trials of docketed causes, and not to delay them. It provides that "the causes on the dockets for trial shall be called peremptorily at the times fixed by law and at such other times as may be fixed by order of circuit judge," and, further, that "appeals from municipal, county and inferior courts shall be preferred cases." Manifestly, all that remains of the quoted provisions of section 4720 is the requirement of five days' notice of the appeal before the cause can be docketed and stand or be set for trial.

But, apart from the changes effected by the new act, it was settled more than 60 years ago that those statutory provisions as to notice and time of trial were solely for the benefit of the appellee, and that if he appeared and insisted upon a trial, though the cause was brought up and docketed during the term at which it was tried, the appellant could not be heard to complain of an immediate trial, since he was the actor and held to be constantly in court. Martin v. Higgins, 23 Ala. 775. We hold that the trial court did not err in setting the cause for trial, and proceeding therewith, as shown by the record.

Questions are raised in this case as to the nature and validity of the contract of lease, and the effect of its stipulations as to termination by the lessor, and also as to the validity and sufficiency of the notice of termination, and of the statutory demand for possession, and as to the effect of the lessor's charging and collecting an increased rental for the months of April and May. All of these questions have been ruled adversely to appellant in the cases of Vinyard v. Republic Iron Steel Co., 87 So. 552,² Allen v. So. Coal Coke Co., 87 So. 562,³ Johnson v. Blocton-Cahaba Coal Co.,87 So. 559,⁴ Watkins v. Roden Coal Co., 87 So. 565,⁵ and Eddins v. Galloway Coal Co., ante, p. 361, 87 So. 557, all decided contemporaneously herewith.

The trial judge properly gave the general affirmative charge for plaintiff, and, the several rulings complained of being free from error, the judgment of the circuit court must be affirmed.

Affirmed.

All the Justices concur, except MILLER, J., not sitting.

McCLELLAN, J., concurs in the conclusion.

² Ante, p. 269.

³ Ante, p. 363.

⁴ Post, p. 373.

⁵ Ante, p. 367.

On Rehearing.