104 Ala. 520 | Ala. | 1894
The jurisdiction of the circuit court, or court having like jurisdiction, to order a sale of lands levied on under execution issued by a justice of the peace, is derived- fronrthe statute. (Code, § § 3359, 3862). An essential element of the jurisdiction is, that all the papers in the cause in which the judgment was rendered, upon which the execution was issued, shall by
The judgments of the city court, by the terms of the statute creating the court, become final on the expiration of ten days from their rendition, as .the judgments of all courts become final, according to the common law, on the close of the term, at which they were rendered. — Pamph. Acts, 1890-91, § 27, p. 1102. The court is not thereby inhibited from the exercise of the power, pertaining to all courts, to vacate judgments or orders void on their face because of a want of jurisdiction. Such judgments or orders are not final, in any proper sense of the term. They are not sentences or decisions, determining the merits of the cause, and terminating the particular suitor proceeding. The vacation of the order prematurely granted, was not a final j udgment, from which an appeal will lie. The original proceeding instituted by the transmission of the papers by the justice of the peace, and the motion for the order of sale, remained pending in the court, unaffected, undetermined by the vacation of the premature order. The order, judgment, or decree of a court, made during the pendency of a cause, not affecting its merits, nor precluding further proceedings, is not
Appeal dismissed.