Callahan v. Lott

42 Ala. 167

Opinion

JUDGE, J.

There has been no trial in the circuit court, of the facts alleged in the petition in this case, and the order of the circuit judge, made in vacation, superseding the execution, and directing the cause to be placed upon the trial docket, will not support an appeal. The correct practice in such cases, is plainly indicated in the case of Pratt & McKenzie v. Keils & Sylvester, 28 Ala. 390.

We may remark, for the future guidance of the parlies in the court below, that the petition does not seem fully to conform to the requisitions of section 2408, and 2409, of the Code. All the facts relied upon to obtain the relief sought, should be set forth in the petition of the applicants; the affidavits of third persons, though they may be looked to for other purposes, cannot be considered as parts of the petition. The petition, however, may be amended in the court below.

Appeal dismissed.