Reed v. Hammond

71 So. 692 | Ala. | 1916

SOMERVILLE, J.

This appeal is from rulings of the circuit court sustaining a demurrer to appellant’s petition for a rehearing under section 5372 of the Code, and dismissing the petition, and overruling his motion, made 12 days later, to set aside the former order and allow an amendment to the petition.

(1, 2) The original petition was fatally defective in its failure to state any facts in support of its prayer for relief, and was subject to the demurrer.—Chastain v. Armstrong, 85 Ala. 215, 3 South. 788. It does not appear that petitioner then offered to amend the petition, and it was properly dismissed.

(3) Conceding, without deciding, that the entertainment of his subsequent motion to set aside that order was not within the discretion of the court, nevertheless it was without merit, because it was not accompanied by an offer to amend the petition in such manner as to correct one of its substantial and fatal defects, viz., by a sworn statement of the facts showing that petitioner had a good and meritorious defense to the action, and that the judgment was therefore inequitable.—Dunklin v. Wilson, 64 Ala. 162; Chastain v. Armstrong, 85 Ala. 215, 3 South. 788; Code, § 5373.

As to the rulings complained of, the trial court does not appear to have been in error, and the judgment appealed from will be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.