The respondent insists the petition for writ of mandamus should not be granted and the writ awarded under authority of Ex parte Schoel, 205 Ala. 248, 87 So. 801. The difference between that case and this one is striking and marked. The discontinuances, if any, in that case were waived by the petitioner. There was no waiver of them by this petitioner. In that case the petitioner was present and contested the motion, heard the judge from the bench take it under advisement from June 2d to June 4th, and petitioner did not object. In this case the petitioner was not present at the hearing of the motion, knew nothing of it until afterwards. In that case it appears the motion for new trial was discontinued under the act of 1915 (Gen. Acts 1915, p. 708, par. 3); but the petitioner appeared afterwards and contested the motion on the merits, without raising the question of discontinuance, and thereby waived it. This put new life in the motion; it was revived by the parties, and, when the motion was heard on June 2, 1921, and the judge from the bench ordered it continued without any entry of record for decision until June 4, 1920, there was no objection to it by the petitioner, and the formal entry continuing it from June 2d to June 4th was entered on June 4th, when the decision was rendered. The petitioner was present, could have objected, but did not when the court continued orally from the bench the motion from June 2d to June 4th, because it was not entered of record; and if the court had refused to enter it of record the petitioner could have excepted. The court did not decide in that case that an oral continuance of the motion within 30 days after the judgment could be entered of record in writing after the expiration of 30 days from the date of the judgment. This would have been contrary to the statute. Section 3, Gen. Acts 1915, p. 708. The oral continuance to a future date, if that future date is more than 30 days from date of judgment, must be entered in writing in the cause within 30 days from the date of judgment under the statute.
In the instant case the petitioner was not present when the oral continuances were made; she had no knowledge of them. She was not present when the motion was heard and decided; she knew nothing of it until afterwards. A term of the court ended, and there was nothing in the record showing a continuance of the motion for a new trial when the court adjourned by operation of law. She did not waive by word or act any of the discontinuances; and she had no opportunity to object to any of them. She knew nothing of them. The court had lost control of the motion. The motion was discontinued; it died within 30 days after the judgment was rendered, because within that time no order was entered continuing the hearing to a future day. It was not revived by the acts or words of the parties afterwards. It was dead long before the 31st day of October, 1921; it remained dead; yet on that date, without the knowledge or consent of petitioner or her attorney, a record was made by the court showing it was decided by the court under written orders of continuances regularly made, entered of record, in time, and in full accord with section 3 of an act approved September 22, 1915 (Gen. Acts 1915, p. 708).
From the facts of that case (Ex parte Schoel, 205 Ala. 248,87 So. 801) it appears the remedy of petitioner was adequate by appeal, and the remedy, if any, was not by mandamus. However, in this case the facts are entirely different; an appeal could not afford the petitioner an adequate remedy, and the application for rehearing is overruled.
Application for rehearing overruled.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.