Johnson v. Natl. Union Fire Ins., Pittsburg, Pa.

123 So. 278, 23 Ala. App. 254, 1929 Ala. App. LEXIS 197

Opinion

SAMEORD, J.

The appellant (plaintiff in the court below) brought suit on a policy of insurance. Demurrer was filed to the complaint. At the time the cause was called for trial, the defendant being called came not, but made default. Judgment was entered nil dicit. Subsequently during the same term of the court the defendant filed its motion for a new trial under sections 9518 and 9521 of the Code of 1923. The trial court entered an order granting the motion and restoring the cause to the docket. Erom this order plaintiff prosecutes this appeal. Motion is here made to dismiss the appeal.

As we see it, the question is settled by the decision in Ex parte Gay, 213 Ala. 5, 104 So. 898, in which it is held that this court has no jurisdiction to entertain an appeal in cases, of this character. If the appellant has a remedy, it is by mandamus.

Appeal dismissed.