This is a petition for mandamus to require the trial judge to set aside a final judgment which was rendered for plaintiff, after the court had granted, ex mero motu, a new trial to plaintiff in an action at law for damages.
Petitioner was not a party to the original action at law but is a party respondent in a suit in equity wherein plaintiff in the original action seeks to compel petitioner to pay the judgment which plaintiff had thus obtained against one of the defendants in the action at law. The suit in equity appears to be based on § 12, Title 28, Code 1940, as amended.
On the first trial of the action at law, verdict was returned for one defendant and against the other defendant, but the jury assessed plaintiff's damages against the other defendant at "0" dollars, that is to say, nothing. In effect, the verdict was for both defendants. Judgment was entered in accord with the verdict on May 13, 1963.
On June 3, 1963, plaintiff filed her motion for new trial and on the same day the court denied the motion.
On June 19, 1963, the court, ex mero motu, set aside the order denying the motion for new trial and granted a new trial to the plaintiff as against petitioner's insured.
On June 21, 1963, the court rendered judgment in favor of plaintiff and against petitioner's insured for ten thousand dollars.
On September 30, 1963, petitioner filed in the trial court a motion to expunge the judgment of June 21, 1963, on the ground that the judgment was void because the trial court, on June 19, 1963, had lost
§ 119, Title 13, recites in pertinent part that:
A motion for new trial had been seasonably filed by plaintiff in the case at bar, but the court acted on that motion and disposed of it on June 3, 1963. No other motion was filed. According to the statute, the power of the court over the judgment rendered May 13, 1963, ended after the lapse of thirty days from May 13, 1963. Petitioner argues that the purported judgment granting a new trial, entered June 19, 1963, was entered by a court which had no jurisdiction to enter the order; that, consequently, the order of June 19, 1963, is void; that the purported judgment of June 21, 1963, is also void on its face; and that the court erred in overruling the motion to expunge the judgment of June 21, 1963.
Petitioner relies on Ex parte Spears, 264 Ala. 256, 86 So.2d 848, where this court held that the refusal of a court to set aside an order granting a motion for new trial was reviewable by mandamus because an order granting a new trial does not put an end to the cause, citing Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116, where the proper method of review in such cases was carefully considered. There the court said:
In Cleveland v. Cleveland, 263 Ala. 530, 83 So.2d 281, this court held that, where the trial court denied a motion to vacate an allegedly void judgment rendered in an action for libel, an appeal was the proper remedy to review the order which denied the motion to vacate.
See to like effect: McDonald v. Lyle, 270 Ala. 715, 121 So.2d 885; Claunch v. Entrekin, 272 Ala. 35, 128 So.2d 100. In Holden v. Holden, 273 Ala. 85, 134 So.2d 775, this court points out that mandamus is the proper method of review where the effect of the refusal to vacate an allegedly void decree is to restore the original cause for further proceedings; but, where the refusal to vacate an allegedly void decree does not reinstate the cause for further proceedings, then the method of review is by appeal.
In Ex parte Spears, supra, the refusal to vacate the order granting a new trial restored the cause to the docket for another trial. The proper method of review was by mandamus.
In the case at bar, the refusal to vacate the final judgment of June 21, 1963, did not reinstate the cause for further proceedings, and the proper method of review is by appeal.
It is established that mandamus will not be granted where petitioner has an adequate remedy by appeal. Ex parte Carroll, 272 Ala. 353, 131 So.2d 676, and authorities there cited.
We are of opinion that the rule nisi was improvidently issued and should be discharged.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur.