Summary
In Wood v. Finney, 207 Ala. 160, 92 So. 264, we held that an order granting a motion to vacate and set aside a final decree and reinstating the cause on the docket was not a final decree nor an interlocutory order of such character as to authorize an appeal.
Summary of this case from Wood v. Casualty Reciprocal ExchangeOpinion
8 Div. 406.
January 19, 1922.
Appeal from Circuit Court, Madison County; Robert C. Brickell, Judge.
Lanier Pride and R. E. Smith, all of Huntsville, for appellant.
After the lapse of 30 days from the rendition of the final decree the court loses all power over it, and the only remedy is by bill of review. Acts 1915, p. 707; chancery rule 83; 202 Ala. 180, 79 So. 664; 200 Ala. 596, 76 So. 954; 16 Ala. App. 293, 77 So. 443.
Cooper Cooper, of Huntsville, for appellee.
The decretal order appealed from will not sustain the appeal, and it should be dismissed. Section 2837, Code 1907; 186 Ala. 562, 65 So. 333.
In a cause on the equity docket of the circuit court of Madison county, wherein appellant was complainant and appellee respondent, a final decree in favor of the complainant was rendered on July 28, 1921. On September 24th thereafter the respondent filed his petition to have said decree set aside upon numerous grounds at this time unnecessary to consider, and on October 6th the court, being of the opinion the final decree was improvidently rendered, entered an order granting the respondent's motion and vacating and setting aside said decree reinstating the cause on the docket. From this decretal order the complainant has prosecuted this appeal.
Appeals are entirely of statutory creation. Ex parte Jones, 186 Ala. 567, 64 So. 960. That the order appealed from is not a final decree, so as to come within the provisions of section 2837 of the Code, needs no discussion. It is an interlocutory order of a character not embraced in section 2838 of the Code, and we are aware of no statute authorizing an appeal from such an order. The question is a jurisdictional one, and it is therefore the duty of the court to dismiss the appeal ex mero motu. Long v. Winona Coal Co. (Ala. Sup.) 89 So. 788; Wise v. Spears, 200 Ala. 695, 76 So. 869; Coker v. Fountain, 200 Ala. 95, 75 So. 471.
Appeal dismissed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.