Opinion
8 Div. 290.
June 27, 1931.
Appeal from Circuit Court, Franklin County; J. Fred Johnson, Jr., Judge.
Wm. L. Chenault, of Russellville, for appellants.
The motion for a new trial on ground of surprise, etc., was due to be granted. Code 1923, § 9521.
J. Foy Guin, of Russellville, for appellee.
The appeal, not having been taken within six months after rendition of the decree, must be dismissed. Code 1923, § 6127; Burgin v. Sugg, 210 Ala. 142, 97 So. 216. None of the various decrees appealed from is sufficient to support an appeal. Muscle Shoals Const. Co. v. Little, 213 Ala. 662, 106 So. 132; Ex parte Gay, 213 Ala. 5, 104 So. 898; Marx v. Barbour Plumbing Electric Co., 10 Ala. App. 404, 64 So. 645; Clements v. Hodgens, 210 Ala. 486, 98 So. 467; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Schwarz, Rosenbaum Co. v. Barley, 142 Ala. 439, 38 So. 119. After thirty days from date of a judgment or decree, the trial court loses all power over it. Code 1923, § 6670; North Birmingham Trust Savings Bank v. Hearn, 211 Ala. 18, 99 So. 175. The four months' statute applies only to judgments rendered by courts of law. Code 1923, § 9521; Stover v. Hill, 208 Ala. 575, 94 So. 826.
Rehearing under the four months' statute, Code, § 9521, is confined to courts of law.
The aim of the statute is to give a speedy remedy at law similar to that already existing and still available by bill in equity to annul and vacate judgments at law procured by fraud, accident, or mistake without fault on the part of complainant, and upon a showing that he had a good cause of action or defense.
The same relief against decrees in equity is obtained by original bill in the nature of a bill of review. Stover v. Hill, 208 Ala. 575, 94 So. 826; Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Sharp v. Edwards, 203 Ala. 205, 82 So. 455; Davis v. Davis, 211 Ala. 317, 100 So. 345; Newlin, Fernley Co. v. McAfee, 64 Ala. 357.
Appellant filed a bill in equity to enjoin a sale of lands under mortgage, and for accounting and redemption. See Ezzell v. First National Bank, 218 Ala. 462, 119 So. 2.
After the cause was at issue, and after the trial court had by order prescribed the time within which proof must be taken, and no proof having been taken as per order, the court at the instance of respondent took the cause under submission and dismissed the bill for want of proof.
More than thirty days after this decree, but within four months, motion was made to set aside the decree dismissing the cause, and to reopen the cause for taking proof.
Certain matters were alleged as an excuse for failure to take proof, but no allegation was made showing a meritorious case.
This motion was denied and stricken on motion of respondent.
Without dealing with other questions, appellants in brief treat the motion as an application for rehearing under the four months' statute. As such it presented no case within the jurisdiction of the equity court. The action of the court thereon is not appealable.
The trial court was not called upon to treat the motion as an original bill in the nature of a bill of review. But, if so, the decree disposing of same was rendered more than six months before the appeal was taken.
In any event, the appeal must be dismissed on motion of appellee.
Appeal dismissed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.