On Rehearing
.PER CURIAM,'Appellant, now for the first time, complains he was denied opportunity of presenting a motion for a new trial because the verdict and the decree thereon were rendered the same day. However, when the verdict was rendered appellant interposed no seasonable motion or request to that epd. On the contrary, the motion for a new trial was filed twenty-five days after entry of the decree. Appellant therefore is in no position to complain of any premature action by the court. It is almost axiomatic to say that remedy by mandamus would, of course, be open to an appellant to correct arbitrary action should the judge fail on request to defer entering the decree on the jury’s verdict until proper objection or motion could be filed.
It is suggested the applicability of § 276, Title 7, Code 1940, giving a party thirty days from entry of judgment to file a motion for a new trial. To ignore such section, contends the appellant, would be judicial legislation. This section of the Code is necessarily and exclusively concerned with law judgments and not with equitable decrees. And notwithstanding the fact that “the trial of the issues by jury partake of the essence of a trial at law” (Howard v. Ridgeway, supra [225 Ala. 106, 142 So. 404]), an issue out of chancery is an equitable proceeding (Karter v. East, supra) and the jury trial is a part of the equitable proceeding (Ex parte King, supra.) and on appeal this court can review» only those errors committed by the equity court, Karter v. East, supra.
Appellant also contends that in none of the cases cited in the original opinion was a motion for a new trial filed within the thirty-day period. A reference to the original records will disclose otherwise. In the case of Brintle v. Wood, quoted from in the original opinion, the final decree was entered March 20, 1930; on April 18, 1930, and within thirty days from the rendition of the decree appellant filed a motion to set aside the decree and to grant him a rehearing or new trial. In refusing to review errors committed by the lower court, it was there said [223 Ala. 472, 136 So. 804]: “Motion must be made before a final decree *203is entered on the verdict.” And in the case of Farmers and Merchants Bank of Ash-ville v. Jones, also cited in the original opinion, the final decree was entered September 28, 1938, and on October 25, 1938, appellant made a motion to set aside the verdict. This court there said [238 Ala. 463, 191 So. 618]: “The motion for new trial, made after the •final decree was entered on the verdict, came too late.”
Appellant makes mention also that Equity Rule 57, Code 1940, Tit. 7 Appendix, has some application, but this contention likewise is without merit. See Farmers and Merchants Bank of Ashville v. Jones, supra; Wachter v. Davis, 215 Ala. 659, 111 So. 917.
Application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and CLAYTON, JJ., concur.