Rule 60 Motions Not Subject to Rule 59.1 Deadlines

In  Rhodes v. Rhodes, [Ms. 2070972] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals dismissed an appeal in part because the trial court never ruled on the Rule 60 motion from which review was sought.  Rule 60 motions are not denied by operation of law after 90 days pursuant to Rule 59.1. Therefore, the motion was still pending and there was not a final order for purposes of appeal.

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Rule 55(c) Motion To Set Aside Default Must Be Ruled Upon In 90 Days; Party In Default Cannot Assert Claim

In McGugin v. McGugin, [Ms. 2071188] (Ala. Civ. App. May 8, 2009), the Court of Civil Appeals dismissed an appeal from being from a void judgment after the trial court held proceedings in a case after it failed to rule on a  Rule 55(c) motion to set aside default judgment.

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Appeal Of Circuit Court’s Order Affirming Probate Court Dismissed Because Appeal to Circuit Court Was Untimely

In Williams v. Lollar, [Ms. 2070282] (Ala. Civ. App. Nov. 7, 2008), the probate court entered a judgment on a will contest.  The appellant filed a post-judgment motion, whcih was denied by operation of law.  After the motion was denied by operation of law pursuant to Rule 59.1, the probate court ruled on the post-judgment motion.  The appellant then appealed the ruling on the post-judgment ruling to the Circuit Court, which affirmed the probate court.  The appellant then appealed the Circuit Court’s ruling.  The Court of Civil Appeals held that the probate court lost jurisdiction to act after the post-judgment motions were denied by operation of law, and the appeal to the Circuit Court was untimely because it was not filed within 42 days of the denial by operation of law.  Because the appeal to the Circuit Court was untimely, the Circuit Court did not have jurisdiction and, therefore, the order affirming the probate court was void.  And, because a void judgment will not support an appeal, the appeal of the Circuit Court’s order was dismissed. 

Lack of Express Postjudgment Ruling Leads to Automatic Denial and Late Appeal

The trial court held a hearing but “did not expressly rule” on a father’s postjudgment motion. Under Rule 59.1, that motion was consequently denied by operation of law 90 days after its filing. An appeal lodged 43 days after the automatic denial was late. Smith v. Smith, No. 2070435 (Ala. Civ. App. Sept. 26, 2008). An earlier order which had “granted the motion in part” — but had really only set it for hearing — was not a “ruling” within the meaning of Rule 59.1.

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Motion to set aside default judgment may be denied by operation of law where motion is not properly supported

In Carroll v. Williams, [Ms. 1060832], (Ala. Sept. 12, 2008), the Alabama Supreme Court held that "[b]ecause Carroll has failed to satisfy his initial burden under Kirtland, we wil not hold the trial court in error for allowing Carroll’s motion to set aside the default judgment to be denied by operation of law without having applied the Kirtland analysis."  Slip Op. p. 10.

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