64 So. 645 | Ala. Ct. App. | 1914
The distinction between the case of McLeod v. Shelby Iron Co., 108 Ala. 81, 19 South. 326, cited by appellants, and relied upon as authority for reversing this case, and the instant case, is that in the former case there Avas an affidavit on file before the trial court on the hearing of the motion for a neAV trial that Avas not controverted, shOAving that the counsel in that, case “could have been present at the court Avhen the case Avas reached if he had availed himself of the ordinary and usual mode of travel,” that he failed to
We have considered the question undertaken by appellant to be presented, and have pointed out and discussed the plain distinction and difference between the case cited by appellants (McLeod v. Shelby Iron Co., supra) and the case under consideration; but in our opinion the language of the statutes authorizing an appeal from an order or judgment refusing or granting a
The order restoring the case to the docket may not result in a judgment against the defendant on the merits, and, even if so, the proper time to review such a ruling would be on appeal from the final judgment.— Roy v. L. & N. R. R. Co., 9 Ala. App. 377, 63 South. 772. Moreover, the order granting the motion, and reinstating the case to the docket, was made conditional on the payment by the movement (appellee) of certain costs, and for aught appearing to the contrary, as shown by the transcript, the condition precedent to granting the motion has never been complied with, and the original judgment remains intact.
Appeal dismissed.