The appellant made a motion in the circuit court under section 5861 of the Code of 1907, which provides:
"Judgments may be set off against each other by a court of record on motion."
The motion was overruled without more in the way of a judgment.
In the case of Ex parte Lehman, Durr Co., 59 Ala. 631, this question was involved, and the statute was there considered, and the court issued the rule nisi and awarded a mandamus instructing the trial court to vacate the order disallowing the set-off, thus in effect holding that such an order would not support an appeal, for the reason that mandamus was not available if the petitioner had the right of appeal from said order. This said case involved the statute in question, and was so decided over 40 years ago, and it has not been questioned by subsequent decisions or statutes, and we must therefore dismiss the present appeal. See, also, Ex parte Hunt, 62 Ala. 1.
True, the Court of Appeals treated such an order as appealable in the case of L. N. R. R. Co. v. Perkins, 1 Ala. App. 377,56 So. 105, but the propriety of the appeal seems to have not been raised and considered, and said court seems to have overlooked the Lehman, Durr Co. Case, supra.
It is sufficient to say, however, that we do not regard the cost paid out by appellant, and which was incurred by John Gray before his death and while prosecuting the action for his own benefit, as such a judgment against the present appellee as to fall within the influence of the above-quoted statute. She was no party to or interested in the suit prior to the death of John Gray or until the amendment and revival of the action for her benefit. Nor has the estate of Gray any right in or claim upon the amount recovered by the administrator for the sole benefit of the minor daughter, Sadie Gray, under the federal Employers' Liability Act (U.S. Comp. St. §§ 8657-8665.
The appeal is dismissed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.