Opinion
7 Div. 757.
April 5, 1928.
Appeal from Circuit Court, Clay County, Hon. E. S. Lyman, Judge.
J. J. Cockrell, of Ashland, for appellant.
There is no adequate remedy for the party aggrieved, either by writ of error or appeal from the court's action in overruling a motion to transfer a cause from equity to the law side of the docket, and mandamus will lie. Ex parte L. N. R. Co., 211 Ala. 531, 100 So. 843; Cloe v. State, 209 Ala. 544, 96 So. 704. It was the duty of the respondent judge to transfer the cause to the law docket. Code 1923, § 6486; Wilbourne v. Mann, 203 Ala. 26, 81 So. 816. It is the duty of the court to uphold an agreement or consent made in open court between the parties or their attorneys, relating to the proceedings in their cause. Prestwood v. Watson, 111 Ala. 604, 20 So. 600; Rivers v. State, 13 Ala. App. 371, 69 So. 387.
A. L. Crumpton, of Ashland, for appellee.
The ruling of the respondent judge on application for rehearing is not revisable. Ex parte Upchurch, 215 Ala. 610, 112 So. 202; Johnson v. Johnson, 215 Ala. 434, 111 So. 7; Ex parte Gresham, 82 Ala. 359, 2 So. 486; Chenault v. Milan, 205 Ala. 310, 87 So. 537; Cox v. Brown, 198 Ala. 638, 73 So. 964; Hale v. Kinnaird, 200 Ala. 596, 76 So. 954; Preddy v. Herren, 215 Ala. 216, 110 So. 131. If the ruling complained of was not on rehearing, petitioner's remedy is by appeal, and mandamus will lie.
Even on direct motion, a judicial record cannot be altered, amended, or supplied by parol evidence, after the lapse of the term during which the thing was done; or, under our present system, after the lapse of 30 days. McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62; Browder v. Faulkner, 82 Ala. 257, 3 So. 30; Wilmerding v. Corbin Banking Co., 126 Ala. 268, 28 So. 640; 34 Corpus Juris, 247, § 474. And, of course, in a collateral proceeding an unrecorded action of the court cannot be shown and made effective by parol evidence. Campbell v. Beyers, 189 Ala. 307, 313, 66 So. 651; Stewart's Adm'r v. Stewart's Heirs, 31 Ala. 207, 214.
Here, petitioner could not show by parol that it confessed the defendant's demurrer to its bill, even if it were alleged that the court received the confession and orally declared judgment thereon. We note, however, that it does not appear that the confession was formally made upon a call of the case, nor that the court took any notice of the confession whatever. We are compelled in either case to take the record as it stands, and to disregard this allegation of the petition.
The action of the trial court in dismissing the bill of complaint for want of prosecution was a final judgment from which an appeal could have been taken, and as to which, if erroneous, appeal was an adequate remedy. Ellis v. Brannon, 161 Ala. 573, 579, 49 So. 1034. Hence mandamus to set aside the judgment does not lie. Ex parte Southern Telegram Co., 73 Ala. 564; State v. Still, 178 Ala. 442, 59 So. 628.
With respect to the complainant's motion to set aside the judgment of dismissal — such a motion is, in substance and effect, an application for rehearing under Chancery Rule 81; and "rehearings in equity rest in the sound discretion of the chancellor; and when the discretion is exercised, his decision is not revisable, either on appeal or by mandamus." Ex parte Upchurch, 215 Ala. 610, 112 So. 202; Ex parte Gresham, 82 Ala. 359, 2 So. 486.
From either point of view, the writ of mandamus does not lie on the case shown by the petition, and the writ must therefore be denied.
Writ denied.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.