It may be conceded that the use of the word "sustained" in the judgment entry was equivalent to "granted," but there is nothing in said judgment entry to show that the word "sustained" was followed up by an affirmative order of the court setting aside the judgment.
"When the judgment on the merits is in favor of a party appealing and there is no formal order or judgment setting the judgment aside, there can be nothing in the record prejudicial to the appellant or upon which he could predicate an appeal. The order or judgment granting a new trial and setting aside aformer judgment is indispensable to the prosecution of anappeal based upon errors in granting a new trial." (Italics supplied.) 6 Mayfield's Digest, p. 28; Chambers v. Morris,144 Ala. 626, 39 So. 375.
Writ denied.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur. *Page 299