Opinion
6 Div. 846.
May 26, 1927.
J. P. Mudd and L. D. Gardner, Jr., both of Birmingham, for appellant.
It is the duty of the court to make findings of law and fact and render final judgment thereon, and mandamus is the proper method to compel performance of this duty. 38 C. J. 633; Ex parte Redd, 73 Ala. 548; Life Fire Ins. Co. v. Adams, 9 Pet. 573, 9 L.Ed. 234; Code 1923, § 7578; Indian Head Mills v. Ashworth, 215 Ala. 348, 110 So. 565; Havens v. Stewart, 7 Idaho, 298, 62 P. 682; Benson v. Ritchie, 44 Utah, 59, 138 P. 136; Haight v. Turner, 2 Johns. (N.Y.) 371; Delord v. Lozes, 142 La. 328, 76 So. 759; Langdon v. Taylor (C.C.A.) 180 F. 385; Bahnsen v. Horwitz (Sup.) 90 N.Y. S. 428. To allow a party, after the cause has been submitted, to furnish defects in his proof that could and should have been offered upon the trial, would be an abuse of discretion. Continental Gin Co. v. Eaton, 214 Ala. 224, 107 So. 209; Craig Co. v. Jones Co., 200 Ky. 113, 252 S.W. 574. After argument has been concluded or waived, the trial judge may not reopen a case for further testimony. Code 1923, §§ 9490, 7571, 7578; A. G. S. v. Smith, 209 Ala. 301, 96 So. 239; Davis v. State, 20 Ala. App. 463, 103 So. 73. The court was without power to grant plaintiff a voluntary nonsuit, because the application therefor came too late. The statute does not contemplate the formal entry of judgment. Code 1923, § 9492; Livergood v. Rhoades, 20 Ind. 411; Walker v. Heller, 56 Ind. 298; Womack v. Miles, 18 Ga. App. 206, 89 S.E. 156; Ciesmelewski v. Domalewski, 90 N.J. Law, 34, 100 A. 179; Kelly v. Chicago, etc., Co., 202 Ill. App. 239; Fine v. Fox, 211 Ill. App. 579.
Ewing, Trawick Clark, of Birmingham, for appellee.
Even if the order of nonsuit was improperly taken, petitioner has waived its right now to complain. Code 1923, § 6670. The respondent was within his province in entering a nonsuit on motion of plaintiff; no decision had been rendered by him.
When, without fraud, a cause has been submitted on the evidence for the final judgment of the court, the trial being completed, it is the duty of the court to proceed to render an appropriate judgment according to the merits of the case. Indian Head Mills v. Ashworth, 215 Ala. 348, 110 So. 565.
This we think is a mandatory duty, which cannot be qualified by any theory of judicial discretion. To say that the trial court may at its discretion set aside a submission, repudiate a trial already completed, and reopen the case for another trial, would be to reduce judicial procedure to utter futility, and in practical effect deny to the unfavored litigant the right to have a trial of his case.
Such a power is unnecessary in the administration of justice, and its exercise would result in the gravest wrongs and abuses. When an asserted power is inconsistent with an established right, the power must be denied. Moreover, we have a statute (Code, § 9490) which forbids the reopening of a case for additional testimony after the arguments are concluded. A. G. S. R. R. Co. v. Smith, 209 Ala. 301, 96 So. 239.
It results that the order of November 16, 1926, reopening the case and setting it down for retrial, was without authority, and the appropriate writ will be issued, directing that it be vacated in accordance with the prayer of the original petition.
Without affirming that the withholding of final judgment from the date of submission (August 26, 1926) until the following November was such a delay as would have per se entitled either party to a writ of mandamus requiring the court to decide the case and render judgment therein, it is clear that the order reopening the case, and conclusively showing the court's intention not to decide and adjudge, presented a proper case for defendant's resort to the writ of mandamus.
The questions of difficulty confronting us here grow out of a consideration of the status resulting from plaintiff's voluntary nonsuit entered on January 20, 1927, the return day of the writ, and two months after the filing of the petition.
Petitioner's contention is (1) that under section 9492 of the Code plaintiff's nonsuit was taken too late, and was improperly entered, because the court had already, in substance, announced its decision in the case; and (2) that, even if that objection is not available, the jurisdiction of this court had already attached by virtue of the petition for mandamus, and could not be defeated by the subsequent creation of a new status by any action of the plaintiff, nor by any order of the trial court, looking to that result.
Respondent's contention, on the other hand, is that he had neither reached nor announced a decision before the nonsuit was taken; and that, the nonsuit being validly entered, the matter of defendant's right to have decision and judgment, though concededly existent prior to the nonsuit, has become a moot question merely, and therefore need not and should not be decided.
Our statute (Code, § 9492) declares:
"Nonsuits must be taken before the jury retire to consider their verdict, or if the cause is tried by the court without a jury, must be taken before the court announces its decision; and two nonsuits, not set aside at the term at which they are suffered, or reversed on error, are equivalent to a verdict against the party suffering them."
A decision is "announced" when the conclusion of the court on the issue tried is made known from the bench, or by any sort of publication of the fact, whether oral or written; and this is true though no judgment has actually been rendered. Livergood v. Rhoades, 20 Ind. 411; Walker v. Heller, 56 Ind. 298; People's Bank v. Exchange Bank, 119 Ga. 366, 46 S.E. 416; Kelly v. Chicago City Ry. Co., 202 Ill. App. 239; Fine v. Fox, 211 Ill. App.? 579; Sauer v. Sauer, 77 Ind. App. 22, 133 N.E. 169; Webster's New Int. Dictionary. On the other hand, a mere intimation of what the decision may or ought to be — a disclosure of a state of mind merely favorable to one of the parties — would not amount to an announcement of the decision within the meaning and purpose of the statute. Taking into account the facts stated and the admissions made in respondent's answer, as well as the affidavit of one of defendant's counsel, our judgment is that the decision of the court was substantially announced after the trial of the case; this being the effect of the statement that in the opinion of the court the plaintiff was entitled to compensation. Under this view, the nonsuit was improperly allowed.
We think, however, that in any event the filing of this petition before the entry of nonsuit fixed the rights of the parties, with respect to the relief sought, as of the date of its filing, and that, the jurisdiction of this court having fully attached, no act of the plaintiff or of the respondent, short of effecting the relief prayed, could affect the power and duty of this court in the premises. Ex parte Richardson (Ala. Sup.) 58 So. 909; Ex parte Mobile, 155 Ala. 226, 46 So. 766; 38 Corp. Jur. 587, § 60. The entry of the nonsuit was therefore nugatory so far as this proceeding is concerned, and must be disregarded, unless it renders petitioner's right to the relief sought a moot question merely.
The argument for respondent is that, having gotten rid of plaintiff's suit and escaped the threatened judgment in his favor, defendant can have no substantial ground of complaint, and suffers no wrong that needs mandatory relief. But the answer to this is that, having been put to the labor and expense of a trial, defendant is entitled to an adjudication of the issue, ending the controversy if the judgment is for him, and, if against him, entitling him to a review on appeal; whereupon, if there be no evidence to support the judgment for plaintiff, defendant would be entitled to have judgment rendered for him by the appellate court.
This view of the matter seems to us to be logical and sound, and we think it substantially refutes the argument contra. In re Watts, 214 F. 80, 130 C.C.A. 520, presents a supporting analogy.
What has been said is not to be taken in the slightest degree as a reflection upon the motives of the learned respondent, whose procedure throughout has unquestionably been dictated by his conceptions of justice and judicial duty in the premises.
Our conclusion is that petitioner is entitled to the relief prayed, and the peremptory writ will be issued accordingly.
Writ granted.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.