14 So. 2d 512 | Ala. | 1943
This appeal is from a decree of the Circuit Court of Lauderdale County, in Equity, entered on March 20, 1942, setting aside a *514 decree pro confesso taken on February 28, 1942.
The cause was submitted here on the merits and motion for writ of mandamus.
Appellant insists that the lower court erroneously set aside the decree pro confesso because appellee's motion to that end did not comply with Equity Rule 34, Code of 1940, Title 7, Appendix, page 1079, in that (1) "no proper showing" was made, and (2) the answer filed in connection with the motion was not "full and sufficient," as provided by the rule.
The decree appealed from is neither a final decree within the purview of section 754, Title 7, Code of 1940, nor is it an interlocutory decree made appealable by the provisions of the Code of 1940. This Court has no jurisdiction of the cause on appeal, and the appeal must be dismissed. Hart v. Greet,
In the case of Brady v. Brady,
And in Ex parte Jackson,
If the matters complained of can be ultimately presented to the appellate court through the medium of an appeal from the final decree, mandamus will not ordinarily be granted. This for the reason, that appellate courts will not hear causes in piecemeal.
The matters upon which appellant predicates his motion for mandamus, can all be determined on appeal from the final decree.
Moreover, under Chancery Rule 34, the court may, in its sound discretion, set aside a decree pro confesso after the testimony has been published where justice so requires. In any event, the trial court is vested with a sound discretion in setting aside decrees pro confesso, and there was no abuse of that discretion in the instant case.
Writ of mandamus refused, and the appeal dismissed.
GARDNER, C. J., and THOMAS and BROWN, JJ., concur.