96 Ala. 316
Ala.
1892
THOIvINGTON, J.

Tbe appeal in tlxis case is taken from an order of the City Court of Birmingham setting-aside a judgment by default against appellees. The motion to set aside the judgment by default was based on grounds which questioned the legality of the judgment, and also on the ground that appellees’ counsel was prevented by sickness from giving attention to the case. The City Court granted the motion, Basing its order in express terms on the grounds first above mentioned, and appellant, plaintiff in the court below, reserved an exception to the ruling of the court by a bill of exceptions duly signed. The case is submitted in this court, together with a motion by appellees to dismiss the appeal. The motion to dismiss the appeal must prevail, and for this reason we do not consider the questions reserved for this court by the bill of exceptions.

An order, or judgment, setting'aside a default is interlocutory in its nature, and is the exercise of a discretionary power. — Allan v. Lathrop-Hutton Limber Co., 90 Ala. 490. The act of February 6, 1891, (Acts 1890-91, p. 779,) was not designed to take away from, nisi prius courts their inherent power, in the exercise of a sound judicial discretion, to set aside defaults at the term at which they are entered; it only provides for an appeal from the decisions of Circuit and City courts, granting or refusing to grant “new trials.” This language can byreasonable constructionbe applied only to a case in which there has been one trial of fact, and a party seeks another, or a new, trial.

A default implies that there has been no trial; that the defendant failed to appear to claim or resist a trial, unless it appears there was a writ of inquiry as to damages, and the defendant appeared or was heard at the assessment of such damages. A new trial is defined to be a “re-examina-nation of an issue of fact in the same court after a trial and decision by a jury, or court, or by referees.” — 1 Hayne on New Trials, j). 23, $ 1; Hilliard on New Trials, p. 1, § 1; Jenkins v. Frink, 30 Cal. 596; Zalski v. Clark, 45 Conn. 397. There is nothing in the act of February 1G, 1891, which suggests a different meaning for the words “new trial” from that they have at the common law. On the contrary, the requirement in the statute that the substance of the evidence and the decision of the court on the motion shall be set out in a bill of exceptions is clearly indicative of the legislative intent to limit the application of the statute to motions for new trials in eases where there has been a trial of fact, and to invest this court with the power to review the evidence introduced on the trial, and to determine whether the trial court erred in granting or refusing the new trial.

*318Tbe grounds on wbicb tbe motion for a new trial were granted in tbis case are tbat tbe judgment by default, sought by tbe motion to be vacated, was not founded on a judgment nisi, and tbat it was not according to law. Tbis motion calls neither for tbe re-examination of any question of fact tbat bad been .decided by a jury or tbe court, nor for any ruling or decision by tbe court which it would be necessary or proper to reserve for consideration in ’this court by a bill of exceptions.

Tbe remedy in such ceses as tbis is by motion for a mandamus or other appropriate remedial writ, and not by appeal, and tbe motion of appellees to dismiss tbe appeal must be granted.

Appeal dismissed.