Ex parte Parker

54 So. 572, 172 Ala. 136, 1911 Ala. LEXIS 168

Opinion

ANDERSON, J.

A judgment nil dicit was rendered in favor of. the petitioners against the Bessemer National Bank on October 19, 1910, and was set aside by the court on the 5th day of November, 1910, upon motion of the defendant. While the judgment rendered was nil dicit, there is no material distinction between it and the judgment by default in effect and operation. — Am. & Eng. Enc. Pl. & Pr. 59; Grigg v. Gilmer, 54 Ala. 430. And said judgment having been set aside in term time, and within 30 days after rendition, it was within the control of the court, and it had the discretionary power of setting same aside, and said action is not revisable under the four-month statute for rehearings at law, and which does not apply. Nor can such order support- an appeal. — Truss v. Birmingham, 96 Ala. 316, 11 South. 454; Allen v. Lathrop, 90 Ala. 490, 8 South. 129; Haygood v. Tait, 126 Ala. 264, 27 South. 842; Colley v. Spivey, 127 Ala. 109, 28 South. 574. There being no remedy to revise the order vacating the nil dicit judgment so rendered, mandamus- might be the appropriate remedy to revise the action of the court.— Bratzel v. New South Coal Co., 131 Ala. 416, 30 South. 832. This question, however, we need not decide; for, if mandamus is the remedy, the order complained of was discretionary with the trial court. — Allen v. Lathrop, supra; Goodwin v. Harrison, 6 Ala. 438. And said order will not be revised, unless it appears that the discretion has been abused, which we do not think is the case. The mandamus is accordingly denied.

Mandamus denied.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.