Opinion
2 Div. 798.
June 1, 1922. Rehearing Denied June 30, 1922.
Harwood, McKinley, McQueen Aldridge, of Eutaw, and Thos. F. Seale, of Livingston, for appellant.
The setting aside of the judgment and granting the new trial was in the sound discretion of the court, and there was no abuse of said discretion. 172 Ala. 136, 54 So. 572; 165 Ala. 372, 51 So. 726, 26 L.R.A. (N.S.) 1109, 138 Am. St. Rep. 71; 135 Ala. 542, 33 So. 486; 168 Ala. 547, 52 So. 921.
Wm. Cuninghame and I. I. Canterbury, both of Linden, for appellee.
Mandamus is the proper remedy to correct the action of the circuit judge in setting aside the judgment nil dicit. 103 Ala. 415. 15 So. 836; 131 Ala. 115, 30 So. 89; 201 Ala. 13, 75 So. 304. The Supreme Court will not review the Court of Appeals on findings of fact. 177 Ala. 384, 58 So. 992; 190 Ala. 132, 67 So. 256; 195 Ala. 420, 71 So. 91; 196 Ala. 655, 72 So. 259; 204 Ala. 358, 86 So. 96.
The Court of Appeals, in its opinion ( 93 So. 283), recognizes the rule as laid down by the decisions of this court that the action of the trial court in setting aside the judgment was largely discretionary and would not be revised except for an abuse of discretion, nevertheless it awarded the mandamus with directions that the order or judgment setting aside the original judgment be vacated. This, of necessity, was, in effect, a finding that the trial court had abused its discretion, under the facts as presented to and considered by the Court of Appeals and which involved a conclusion upon the facts or upon the application of same to the law and which holding will not be reviewed and revised by this court. Postal Telegraph Co. v. Minderhout, 195 Ala. 420, 71 So. 91.
Writ denied.
ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.