119 So. 664 | Ala. | 1929
A bill in equity was filed August 14, 1924. It was answered in due course. Interrogatories to respondent were filed, and answers made to them. On August 3, 1927, respondent moved to dismiss the bill for want of prosecution. The motion was overruled. Thereupon, on January 14, 1928, complainant's counsel gave notice of a motion to examine witnesses on February 27, 1928. The record shows the following minute entry: "1/16/28. Submitted for decree on motion of respondent to dismiss for want of prosecution. Motion granted." On February 15, 1928, complainant filed a motion to reinstate the case on the docket. On March 6, 1928, the court entered a formal decree overruling the motion. On August 6, 1928, complainant filed an appeal here "from the decree rendered in said cause on the 5th day of March, 1928, overruling complainant's motion to reinstate the above-named cause and restore it to the docket."
After the submission of this appeal, appellee has moved to dismiss the appeal because taken more than 6 months afterJanuary 16, 1928. This case is not submitted on that motion. It was made after submission, and too late for consideration. No motion is made to dismiss the appeal because taken more than 30 days after the ruling on the motion to reinstate, nor because the decree from which the appeal is taken is not appealable. The motion to reinstate is but an application for a rehearing, under rule 81 of Chancery Practice. That rule permits its hearing "during the term in which the decree is rendered." In the case of Chilton v. Gurganus (Ala.)
If we should treat the memorandum granting the motion to dismiss as a formal order to that effect, the motion to reinstate, being acted upon on March 6, 1928, more than 30 days thereafter, the record not showing that appellee participated in the hearing, or otherwise waived the discontinuance of the motion, the order of the court denying the motion could not be reviewed, even if it were such an order as would otherwise support an appeal. Stallings v. Clark, ante, p. 31,
This court has also held, in the case of Ford v. Ford, ante, p. 15,
It results that this court has no jurisdiction of this appeal, and it is dismissed ex mero motu, pursuant to a well-established rule in this court. Jackson v. Jackson,
We do not intend, by what we have said, to express or imply a consideration of the status of the case resulting from the memorandum in the record, dated "1/16/28," reciting "motion [to dismiss] granted." We merely dismiss this appeal, without considering any other question.
Appeal dismissed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.