
    Ober & Sons Co. v. Thomason Grocery Company.
    
      Statutory Trial of the Bight of Property.
    
    1. Trial and its incidents; effect of agreement between counsel. ■ . An agreement entered, into between the attorneys representing the parties to a suit, that the cause should be submitted • to the trial court for a decision at the pending term, without the intervention of a jury, which agreement was subsequently modified by consenting to a decision by the court during vacation, does not bind the parties to submit to a decision of the cause at a subsequent term of the court; and this is true, although the postponement of the decision under the original agreement was at the instance of one of the attorneys.
    Appeal from the Circuit Court of Marshall.
    Tried before the Hon. J. A. Bilbko.
    This was a statutory trial of the right of property which was instituted by the appellees interposing a claim to certain monies which a garnishee answered that it had in its hands, in response to a garnishment issued against it in a suit brought by the appellants against Barron & Russell. The only question presented for review on the present appeal is one growing out of the rulings of the court upon an agreement entered into between "the attorneys representing the plaintiff and tlie claimant. After the introduction of all the evidence, as set out in the bill of exceptions, the bill of exceptions then contains the following recital relative to the said agreement: “This was all the evidence. The court thereupon suggested that it seemed, that the evidence was without conflict and that the general affirmative charge upon the evidence one way or the other would determine the case, and that it would be unnecessary to trouble the jury further and that he would take the case under advisement and announce the court’s decision upon the law on a later day of the term, which would not end for more than a week, and would enter a judgment as upon the verdict of the jury rendered in accordance with his charge, also stating at the time that he was inclined to give the affirmative charge for claimant, and would hear from plaintiff’s attorney later in the term as to why he should not do so. Both parties in open court verbally agreed to this suggestion, and the jury was, therefore, discharged by the court. This verbal agreement was made in open court and the presiding judge, the Hon. James A. Bilbro, had before that time in open court made a pencil memoranda of the facts of .the case on a tablet or sheet of paper. The court was very busy during the remainder of the spring term of said court with other business, and this case was not called up any more until within a few minutes of final adjournment, and until after the court had directed the sheriff to adjourn court for the term, and the judge had arisen from the bench, when claimant’s counsel called the court’s attention to the case and Avanted judgment rendered in their favor, and the court said it Avas re ulv to do so. To this the plaintiff’s counsel objected because he desired to be heard further on the questions of haw i]ivolved in the case and because on closer examination . † the evidence he thought there Avas a conflict in the evidence and it would take a jury and objected to such a buried disposition of tlie case. The claimant’s comm *1 insisted on tlie agreement to be carried out, and asked tbe court to enter tbe judgment, but tbe court suggested tliat on account of tbe fact that plaintiff’s counsel having been busy be would bold tbe case and allow him to • be beard during vacation at Gadsden, Ala., .where tbe presiding judge resided, and would render judgment, and to tbis both counsel for plaintiff and claimant agreed in open court, but plaintiff’s counsel never went to Gadsden, and made no effort to have tbe case beard or tbe judgment entered on said agreement, and neither did counsel for claimant. When tbe case was called at tbe fall term, 1901, of said court, tbe plaintiff announced ready for trial, claimant’s counsel insisted that under tbe agreement at tbe former term tbe court should render judgment in tlieir favor. To tbis tbe .plaintiff objected and demanded a. jury to try tbe issues in tbe case. In tbe discussion of the matter before tbe presiding judge in open court, Mr. O. I). Street, cvbo was all tbe time said counsel for plaintiff and who made tbe agreement herein set out, stated at that time be did enter into the agreement that tbe court might give tbe general affirmative charge either for plaintiff or claimant and enter judgment as if a jury bad rendered a verdict in compliance with said charge, but that be now repudiated and withdrew from said agreement because tbe term at which it was made bad expired and there was a conflict in tbe evidence, and Avould not abide by or be further bound by it. And claimant’s counsel insisted that tbe case bad. been taken from tbe jury and held over from tbe last term under said agreement at tbe instance of Mr. Street, and by bis request, and that said agreement was still in full force and binding, and that tbe judgment ought to be entered in accordance Avith its terms.
    Tbe court refused tbe demand of plaintiff for a jury to try the issue, to Avbicb plaintiff then and there duly excepted. Tbe court refused to alloAv any testimony to be submitted by tbe plaintiff at tbis term, and to tbis action of tbe court tbe plaintiff then and there duly excepted. Tbe court thereupon, over tbe objection and exception of plaintiff, Avithout tbe intervention of.a jury and Avithout tbe introduction of any evidence 'which plaintiff was asking to offer in support of his claim, rendered judgment in favor of claimant as upon the verdict of a jury, and to this action of the court the plaintiff then and there duly excepted.”
    From a judgment in favor of the claimant the plaintiff appeals and assigns as error the court’s refusal of plaintiff’s demand for a trial by jury, and the rendition of judgment in favor of the claimant.
    O. I). Street, for appellant.
    It is clear that the first agreement was made for the purpose of a trial at the spring term, while the second agreement was for the purpose of a trial in vacation. The first was for good reasons and by mutual agreement abandoned; the second became functus by the failure of the court and the parties to carry it out. Mutual failure to carry out the second agreement could not operate to revive the first. Ese parte Hayes, 92 Ala. 120.
    John C. Forney and R. N. Bell, contra,
    cited Lanahan v. Heavers, 20 L. R. A. 759.
   TYSON, J.'

Substantially but one question is presented by the record in this case. It is, did the agreement entered into bind the parties at a subsequent term of the court? Clearly if it did not, the court committed an error-in holding plaintiff bound by it and refusing its demand for a jury trial. We find that one of the terms of the agreement was, that the presiding judge was to decide the case at the term of court at which the agreement and submission was made. With this limitation expressed as to the time when the case was to be decided, it cannot be inferred that it was the intention of the parties, that the agreement should be binding if the decision was.not made within the time limited. In other words, we cannot by implication, which could only be indulged in the absence of such a limitation, infer that it was the intention of the parties that the submission of the case to the judge for decision was to extend to a period beyond the term of the court, and thus confer upon him the right to decide it at some other term beyond the period fixed by the agreement. It may be said that the plaintiff waived this term of the agreement and that it Avas at his instance that a decision Avas not rendered within the time fixed. It may he, and doubtless it is true, that a postponement of the decision was at the instance of plaintiff’s counsel'and for his convenience. But the agreement under Avhich the postponement was had also- contains a term fixing the time when, though not definite as to day, and the place where, the judge was to render his decision. It was to be rendered in vacation at Gadsden. It is also true, that plaintiff’s counsel did not go to Gadsden or make any other effort looking to a decision of the case. And for that matter, neither did claimant’s counsel. Nor did the judge decide the case, as he had the l’ight to do. There being no execution of the agreement Avithin the time limited by it, Ave are constrained to hold that it became functus, and that the case stood for trial at the next term of the court, and that the court should have proceeded regularly with the trial of it as though no agreement had ever existed.

Reversed and remanded.  