Carroll v. Vaughan

PETERS, J.

This is a proceeding to set aside a judgment and grant a rehearing under the statute. — Rev. Code, § 2814. The prayer of the petition was granted in the court below, and a rehearing was allowed. The respondents in the proceeding for rehearing, and the plaintiffs in the judgment, appeal to this court. They assign for error the overruling of their demurrer to the petition, and the judgment of the court setting aside the judgment and granting a new trial.

The Code declares, that “ where a party has been prevented mailing his defense by surprise, accident, mistake, or fraud, without fault on his part, he may, in like manner, apply for a rehearing, at anytime within four months from the rendition of the judgment.” — Rev. Code, § 2814. In treating of this statute, this court has declared, that “the petition must he regarded as a new action, the object o,f wbicb was to obtain a rehearing and trial on tbe merits in tbe original action, and to vacate tbe judgment wbicb bad been rendered in it.” — Pratt & McKenzie v. Keils & Sylvester, 28 Ala. 390, 397; Garrett & Bibb v. Terry, 33 Ala. 514, 515. But tbe judgment granting tbe rebearing is not final. It does not put an end to tbe suit. It is interlocutory. From sucb a judgment there is no appeal. — Callahan v. Lott, Adm’r, 42 Ala. 167; Lockhart v. Wyatt, 42 Ala. 31; Fuller and Wife v. Boggs, January term, 1872. On tbe authority of these cases tbe appeal must be dismissed, at appellants’ cost. — See, also, 28 Ala. 390, 399.

Tbe appeal is therefore dismissed, at appellants’ costs.