Federal Reserve Bank of Atlanta v. McCreary

163 So. 323, 230 Ala. 677, 1935 Ala. LEXIS 309

• Court: Supreme Court of Alabama
• Decided: June 27, 1935
• Docket: 3 Div. 132.
• Status: Published

Opinion

THOMAS, Justice.

A review of the action of the trial court in setting aside the judgment was sought by appeal.

There was no anticipation of a dismissal of the appeal, and, in the alternative, a petition for a writ of mandamus, as was the case in National Bread Co. v. Bird, 226 Ala. 40, 145 So. 462.

There was no trial on the facts in the circuit court, the verdict and judgment being rendered and entered by consent of the attorneys of record. When the court examined the respective affidavits presented on the motion of one of the defendants —on the ground that she was not represented and no one was authorized to consent for her — and set aside the judgment and restored the case to the trial docket, it was in the exercise of its plenary power. Ex parte Doak, 188 Ala. 406, 66 So. 64. The evidence was in conflict on the issue of consent vel non and representation of the movant on her authority; and in such state of the case, an appeal is not authorized from such order. Senn v. Joseph, 106 Ala. 454, 455, 17 So. 543. The appeal must therefore be dismissed as a question of jurisdiction is presented.

Appeal dismissed.

ANDERSON, C. J., and BOULDIN and BROWN, JJ., concur.