Ex Parte Schoel

Petition for writ of mandamus to require the judge of the circuit court of Tuscaloosa county to vacate and annul the order under date of June 4, 1920, granting defendant's motion for new trial in the cause of Elizabeth E. Schoel (petitioner in the present proceeding) against the United Order of the Golden Cross, and to declare such order or judgment a nullity.

The theory, in primary substance, of the petition is that because of the want of efficient orders of continuance of the motion for new trial, the circuit court was without power to consider the motion.

The answer of the circuit judge, in response to rule nisi, not being controverted (Code, § 4865), its statements, etc., must be taken as true. Ex parte Scudder, 120 Ala. 434, 436,25 So. 44.

By appearing and unreservedly contesting the merits of the motion for new trial on June 2, 1920, the petitioner (plaintiff in the judgment in the circuit court) waived any right to claim a discontinuance consequent upon the absence (if so) of effective orders of continuance of the motion. McCarver v. Herzberg, 135 Ala. 542, 544, 33 So. 486; Shipp v. Shelton,193 Ala. 658, 662, 69 So. 102, among others.

From the answer of the circuit judge it appears that, upon the conclusion of the hearing on June 2, 1920, "the circuit judge stated and ordered from the bench that the motion be continued under advisement for decision Friday, June 4, 1920, but did not at that time make in writing on the motion docket any entry of any kind. The court did, however, state and order from the bench on the said June 2, 1920, that the motion would be continued for decision to Friday, June 4, 1920. On Friday, June 4, 1920, the trial judge, in open court, in pursuance of its order theretofore made on June 2, 1920, announced its ruling granting the defendant's motion for a new trial, and at that time made formal entry, in writing, of the order made on June 2, 1920, as above, and at the same time made formal entry, in writing, of the order granting defendant's motion for a new trial. The plaintiff's counsel was not present in court on June 4, 1920, at the time the order was entered granting defendant's motion for a new trial, but the order was entered on the day theretofore set in the order made from the bench on June 2, 1920, and during the hour for holding court. The fact that the pronouncement made from the bench on June 2, 1920, curia advisari vult (Ex parte Doak, 188 Ala. 406, 66 So. 64), was not put in the form of a minute entry or otherwise recorded or noted down until June 4, 1920, cannot avail petitioner, since the entry of record of the memorial of the judicial pronouncement was a ministerial performance that could be effectively thereafter accomplished. L. N. v. Perkins,152 Ala. 133, 140, 141, 44 So. 602. If it is assumed, for the occasion only, that any further notice of the time when the motion would be ruled on than the above-quoted parts of the answer disclose was necessary to avoid an error that might, in some circumstance, result from the absence of counsel for or against whom the ruling is made (Ex parte Doak, 188 Ala. 406,412, 66 So. 64, and cases there cited), appeal, not recourse to mandamus, would serve the purpose to institute revision and relief from the error. Mandamus will not issue where remedy by appeal is afforded.

The petition for the writ is denied.

Writ denied.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.