On Application for Rehearing
LIVINGSTON, Chief Justice.The appellant, after submission of the cause here, filed an ex parte motion, supported by an affidavit, to have this Court order a new trial of this cause in the Circuit Court of Montgomery County, Alabama, from which the case came. This motion was based on alleged newly discovered evidence after submission of the cause here.
We did not take notice of the motion on original deliverance. The appellant asked us on rehearing to rule on its said motion.
Appeals are purely statutory and the jurisdiction and power of the court on appeal are controlled by statute. Title 7, Sec. 744 et seq., and Sec. 754, Code of 1940; Lindsey v. Barton, 260 Ala. 419, 70 So.2d 663; Ex parte Jonas, 186 Ala. 567, 64 So. 960. Pending decision of the appeal, there is no authority for this Court to inquire into a claim of newly discovered evidence when the record on appeal discloses no action on that claim by the trial court with the attendant effort to review such ruling. Therefore, the ex parte motion, together with the supporting statement, is not subject to consideration on this appeal, the Court being bound by the record and the evidence aliunde or matter dehors the record not being subject to consideration. And after an appeal has been taken, the trial court has no power to entertain a motion for a new trial or rehearing under Title 13, Sec. 119, or Title 7, Sec. 279, Code of 1940, except as it may be affected by the specific grant in criminal cases by Title 15, §§ 368 and 382 of the Code.
The application for rehearing is overruled.
LAWSON, STAKELY and MERRILL, JJ., concur.