Haygood v. Tait

126 Ala. 264

Opinion

McCLELLAN, C. J.

No appeal lies to this court from an order of the circuit court denying and overruling a motion to set aside a- judgment by default and to .grant a new trial, and error cannot be assigned upon such action.—Truss v. B. L. & M. R. R. Co., 96 Ala. 316; Ledbetter & Co. et al., v. Vinton, 108 Ala. 644. Assignments of error numbered from 1 to 5 inclusive, will, therefore, be disregarded.

The court, however, committeed reversible error in Tendering judgment by default against the defendant before any complaint bad been filed in the cause by the plaintiff.—Code, §§ 561, 572; Steelman v. Owen, 8 Port. 562; Amason v. Nash, 19 Ala. 104; Arundale v. Moore, 42 Ala. 482; Jones v. Howard, 42 Ala. 483; Penn v. Edwards, 42 Ala. 655; Heyman v. McBurney, 66 Ala. 511; Elmore v. Simon, 67 Ala. 526; and for ibis the judgment must be reversed. The cause is remanded.

Reversed and remanded.