41 Ala. 183 | Ala. | 1867
A material difference exists, between an application for a re-hearing under section 2407 or 2408 of the Code, and an application for a new trial under the ordinance of the State convention, adopted September 28, 1865. An application for a re-hearing, under the Code, must be by petition, in which the matter complained of must be stated, with a prayer for the appropriate relief; and the court may direct the trial of all questions of fact by a jury, upon an issue made up under its direction. Such a proceeding contains more of the elements of an original action, than of a motion for a new trial, and bears a greater similitude to the former than to the latter. Hence, it has been held by this court, that a proceeding under the Code must be regarded as a new action, the object of which is to obtain a re-hearing and trial on the merits in the original action; consequently, appeals from final judgments in such proceedings have been entertained.—Pratt & McKenzie v. Keils & Sylvester, 28 Ala. 390; White v. Ryan & Martin, 31 Ala. 400; Shields v. Burns, ib. 535 ; Garrett & Bibb v. Terry, 33 Ala. 514; Davis v. McCampbell, 37 Ala. 609; Elliott v. Cook, 33 Ala. 490; Stewart v. Williams, 33 Ala. 492.
The ordinance of the convention provides that, “ in all cases in which judgments er decrees have been rendered, in all courts of record in this State, since the 11th January, 1861, and prior to the date of this ordinance, the party against whom such judgment has been rendered shall be
Appeal dismissed.