Opinion
4 Div. 38.
February 8, 1923.
W. W. Sanders, of Elba, for petitioner.
In a bill of review, an application for leave to file the same is necessary, and the adverse party is entitled to notice of such application. 2 Stew. P. 417, 21 C. J. 735; 84 Ala. 348; Code 1907, §§ 3177, 5372. Where motion for rehearing or new trial is not made within 30 days, or acted on or continued by the court, a judgment or decree rendered on such motion is void. Acts 1915, 830; 200 Ala. 596, 76 So. 954; 203 Ala. 502, 83 So. 600.
J. A. Carnley, of Elba, for respondent.
No brief reached the Reporter.
Original petition by Davis and others to this court for writ of mandamus to require the judge of the Twelfth circuit to vacate and annul an order or ruling of the circuit court denying the motion of present petitioners to strike a pleading filed on March 1, 1921, and later amended, by Mrs. Pearlie Davis Lee, wherein Mrs. Lee sought to have vacated a decree entered in the cause of Davis and others against Mrs. Lee and her minor child in which the relief sought was the setting apart of homestead exemption to Mrs. Lee and the minor child and the partition among these complainants of the excess of real estate of which Mrs. Lee's former husband, C. Davis, was seized and possessed at the time of his decease.
The report of the appeal contains the substance of paragraphs 2, 3, and 4 of the pleading filed on March 1, 1921, by Mrs. Pearlie Davis Lee. So far as the present record advises, this pleading was not called to the attention of the judge or court until March 5, 1921, more than 30 days after the decree assailed was rendered. The decree Mrs. Lee sought to have set aside was rendered on February 1, 1921. It does not appear from the record of that cause, reproduced in the present proceeding, that the decree assailed has been fully executed, or that that cause is not still pending in the same court whereto Mrs. Lee addressed her pleading through which she seeks the vacation of the decree therein. Independent of the correctness of other considerations recited in the court's opinion, the court's declination to sustain the motion to strike Mrs. Lee's pleading, assailing the decree, may be justified by recourse to that feature of the court's conclusion wherein it was declared that Mrs. Lee's "petition should be treated as an original bill, and procedure had thereunder as such." Referring the action of the court to that theory, it is evident that Mrs. Lee's pleading was regarded, as it might well have been, as a bill in the nature of an original bill of review. Evans v. Wilhite, 167 Ala. 587, 52 So. 845. Whether the view thus manifested by the court or the exercise of discretion thereby evinced were well founded, the practice approved in Sayre v. Elyton Land Co., 73 Ala. 85, 96, might be considered.
Section 3 of the act approved September 22, 1915 (Gen. Acts 1915, p. 708), provides that —
"After the lapse of thirty days from the date on which a judgment or decree was rendered the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day."
If Mrs. Lee's pleading is regarded as an original bill — a new suit (Evans v. Wilhite, supra) — it is manifest that the act quoted ante is without application in the premises.
Whether the pleading of Mrs. Lee, sought to be stricken on the present petitioners' motion, is sufficient as an original bill, when assailed by appropriate demurrer, is a question not presented for consideration by this application for mandamus.
The writ of mandamus prayed is denied.
Writ denied.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.