Stallings v. Clark

In Childers v. Samoset Cotton Mills, 213 Ala. 292,104 So. 641, this court said:

"It is also settled that the pendency of a motion for new trial suspends the finality of the judgment for the purpose of an appeal until said motion is disposed of either by the act of the court or the operation of law."

The case directly involved the disposal of the motion by a discontinuance. The rule now announced makes the suspension of the judgment for the purpose of appeal to depend upon how the motion is disposed of.

The underlying principle often declared by this court in line with the weight of authority elsewhere is that the pendency of a motion for a new trial suspends the judgment, retains the cause in fieri; the judgment has not become final; there is no final judgment to appeal from; the statute of limitations against appeals does not begin to run until the right of appeal accrues.

Indeed, it is said to have been the rule at common law that the original judgment was not entered until the motion for new trial was disposed of. Now the judgment is entered, but, upon filing and continuance of a motion for new trial in due course, the judgment entered is tentative, is retained in the breast of the court for further consideration on the motion.

Surely these results do not depend on how the motion is ultimately disposed of. Woodward Iron Co. v. Brown, 167 Ala. 316,

52 So. 829; Barron v. Barron, 122 Ala. 194, 25 So. 55; Florence Cotton Iron Co. v. Field, 104 Ala. 471, 16 So. 538; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Sup. Lodge P. of P. v. Thomas, 130 Ala. 275, 30 So. 567; 3 C. J. p. 1051.

Under our statutes, the date when the judgment becomes final by nonaction of the court is as certainly fixed as by an order granting or refusing it. We can see no reason to base a new rule upon laches in failing to follow up the motion to a final order. The failure to act on the motion may be due to the fault of either party or neither; may be due to a condition of the docket wherein the court continues the motion from time to time until the movant prefers to suffer a discontinuance than have an ill-considered ruling entered.

I therefore respectfully dissent.

GARDNER, J., concurs in the foregoing views.