The former order entered here overruling the motion to dismiss the appeal, has, by order of the court, been set aside, the movant allowed to amend and the motion as amended was resubmitted with proof.
The authorities seem to be agreed that a motion for a new trial may be made in ad quod damnum proceedings, after verdict fixing the damages, although the proceedings are purely statutory and the jurisdiction conferred is a limited jurisdiction, which requires strict observance of the prescribed course of procedure. Code 1923, § 7476, Code 1940, Tit. 19, § 1; Postal Telegraph Cable Co. v. Alabama Great Southern Railroad Co., 92 Ala. 331, 9 So. 555; Sloss-Sheffield Steel Iron Co. v. O'Rear et al., 200 Ala. 291, 76 So. 57; 10 R.C.L. 222 § 189; In re Owen and Memorial Parks in Detroit,244 Mich. 377, 221 N.W. 279, 61 A.L.R. 190 and note; United States v. Chicago B. Q. R. Co., 298 U.S. 689, 56 S.Ct. 957,80 L.Ed. 1408; 4 R.C.L. Sup. 2679, § 189.
And the law is well settled that the effect of a motion for new trial, timely made and continued to a definite date for hearing, suspends the finality of the judgment and keeps the proceedings in fieri; preserving the power and jurisdiction of the nisi prius court for making proper orders. Florence Cotton Iron Co. v. Field, 104 Ala. 471, 16 So. 538; Barron v. Barron, 122 Ala. 194, 25 So. 55; Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 So. 641; Shipp et al. v. Shelton,193 Ala. 658, 69 So. 102; J. H. Arnold Co. v. Jordan, 215 Ala. 693,112 So. 305.
The rule has been applied to "appeal by certiorari" from judgments awarding compensation under the Workman's Compensation Act, Code 1940, Tit. 26, § 253 et seq. Exchange Distributing Co. v. Oslin, 229 Ala. 547, 158 So. 743.
The evidence in support of the motion as amended supports its averments that the motion for new trial is still pending, and the proceeding in the trial court is still in fieri. The appeal was premature and will be dismissed, without prejudice.
Motion granted, appeal dismissed, without prejudice.
GARDNER, C. J., and THOMAS, BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.
KNIGHT, J., not sitting.