[472]*472COLEMAN, Justice.
Respondents appeal from decree ordering and enjoining respondents, an employer and a union, to reinstate complainant, a moving picture machine operator, in his job, and also awarding complainant a decree against respondents for $1,987.50. On application for rehearing, the court rendered decree reducing the money award by the amount of $750.00.
We will refer to respondents as being two parties, one being Moving Picture Machine Operators Local No. 236 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, an unincorporated association, sometimes referred to as the Union or the Local. The other party respondent we will refer to as Waters, it being composed of Waters Theatre Company, a partnership, and the partners, N. H. Waters, Sr., and W. D. Waters.
On December 20, 1963, complainant filed his bill of complaint, and later amended the bill. The Union filed its demurrer and answer to the bill, and later filed demurrer and answer to the amended bill. The court overruled the Union’s demurrer to the amended bill.
The Union filed special pleas A thru F, inclusive. In final decree, the court said Pleas B through F were legally insufficient but the court had considered the same as part of the Union’s answer. The court found Plea A “to be without merit.”
Waters filed answer to the amended bill. The court heard testimony ore tenus and the cause was submitted on pleadings and testimony.
On February 20, 1964, the court rendered final decree. The decree on application for rehearing was rendered April 27, 1964. The Union appealed from the decree of February 20, 1964, and assigned 76 errors. Waters joined in the appeal and severally adopted all the errors assigned by the Union except two. Complainant has cross-assigned errors.
Complainant is E. Douglas Cayson. In substance, he alleges that from June 1, 1962, until December 5, 1963, he was employed by Waters as a moving picture machine operator (hereafter referred to simply as operator) ; that until February 17, 1963, he was a member of the Union; that on said date he was purportedly expelled from the Union for refusal to comply with certain seniority practices of the Union deemed by him to be illegal; that Waters owns or operates eight motion picture theaters in Jefferson County, employs one or more op-
[473]*473' crators at each theater, and that, during his ■ employment, complainant worked as one •of such operators; that the Union is a local union which consists of members who now, or in the past, have worked as operators; that the Union acted as sole bargaining agent for the operators employed by Waters and was recognized as such agent by Waters; that, on August 1, 1963, Waters and the Union entered into a contract, ■copy of which is made exhibit to the bill; that on September S, 1963, the Union, or ■one of its members, acting under the contract, demanded of Waters that complainant be replaced in his job at Fair Park Drive-In Theatre and that complainant’s job be given to W. C. Mathews, a member of the Union who had not then been continuously employed by Waters for as long a time as had complainant; that, pursuant to said demand and acting under the contract and because complainant was below W. C. Mathews on the purported seniority list, which appears as Exhibit A-l to the contract,1 Waters did on September 22, 1963, transfer and demote complainant, at a reduction in pay, from his job at Fair Park to Robinwood Theatre, another theater owned by Waters; that on November 20, 1963, the Union, or one of its members, acting under the contract, demanded of Waters that complainant be replaced in the job at Robinwood by another member of the union, H. W. Gaston, who had not then been continuously employed by Waters for as long a time as had complainant; that on December S, 1963, Waters, acting under the contract and pursuant to the demand and because complainant was below H. W. Gaston on the list,2 terminated complainant’s employment and replaced him with Gaston; that complainant has not since been employed by Waters and has not been employed; that the persons set out on the list comprise only the membership of the Union, as it existed immediately prior to complainant’s aforesaid expulsion from the Union, in the order of their purported length of membership in the Union and without regard to the current employment of any of the persons set out on the list; that the persons whose names appear on the list were, on the date of the contract, employed at divers places of employment; that less than half of said persons were then employed by Waters; that some of said persons have not since been employed by Waters; that said persons were not employed by other employers who simultaneously executed said agreement; that the inclusion and order of such persons on the list were without regard to any status of employment by Waters; that, since the effective date of the contract and under the construction or application of the contract by respondents, membership in the Union or length or order of such membership has been.made a condition of employment or continuation of employment of operators by Waters in violation of Code of Alabama of 1940, Title 26, Chapter 7, Article 4;3 in the alternative, that, since [474]*474the effective date of the contract and under the construction and application of the contract by respondents, employment and continuation of employment of operators by Waters is effectively controlled by the Union, and that the Union has thereby acquired an employment monopoly with respect to such employment in violation of the Right to Work Law cited above; in the alternative, that, since the contract’s effective date, Waters has effectively surrendered control, over continuation of employment of operators by respondent, to the Union and its membership so that the Union has acquired an employment monopoly with respect to such employment in violation of the Right to Work Law; in the alternative, that under the contract, as construed and applied by respondents, continuation or termination of complainant’s employment by Waters was controlled or made dependent upon the amount of time since complainant became a member of the Union, as compared with the length or duration of membership in the Union of H. W. Gaston and W. C. Mathews, and that complainant’s right to work for Waters was thereby abridged in violation of the Right to Work Law; and “. that his loss or deprivation of employment is as a direct result of the operation of the hereinabove-described contract, that he is without any means of support, and that he will suffer irreparable injuries and damages if equitable relief is not afforded in-the premises.”
A copy of the contract is attached to the bill as an exhibit. Pertinent provisions are set out in footnote.4
[475]*475The gist of respondents’ contentions, -as we understand them, is to effect that: the Right to Work Law is in derogation of the common law and, therefore, must he [476]*476strictly construed; that the contract does not violate the Right to Work Law on the face of the contract or as the contract was construed and applied by respondents; that complainant’s right to employment or continuation of employment was not denied or abridged by any requirement that he be a member of the Union; that the seniority list is not based on length of union membership but on length of employment in the “unit,” or geographical area, which embraced “the entire greater Birmingham area including all the theatres in the Birmingham area,” being sixteen theatres in all, of which Waters owned eight; that complainant has waived the right or was estopped to assert the invalidity of the contract; and that the bill was subject to demurrer on the ground that the allegations of the bill are insufficient to show that complainant will suffer irreparable damages.
1.
The principal issue of fact is whether the order of the names on the seniority list was based on longevity of union membership or on longevity of employment in the area. The court found:
“The list purports to contain the names of all moving picture machine operators who have been regularly employed at theaters in this area and listed according to the amount of each person’s continuous experience as such within the area. The Court finds that such is not a fact. The Court finds, rather, that the list is nothing more than a roster of the membership of the respondent union as it existed immediately prior to the expulsion of the complainant in the order of the listed persons’ initiation into the respondent union. . . . . There are only eight moving picture machine operators’ jobs available in the theaters operated by respondent Waters Theatre Company and only twenty of such regular jobs available in the entire Birmingham area.
“In practical effect, the purported seniority list insures that the only persons who will be regularly employed by the respondent Waters Theatre Company or, indeed, by any other employer within the Birmingham area, which recognizes this ‘seniority’ system, are those persons who-appear at the top of the purported seniority list solely by reason of the date of their initiation into -the respondent local union.”
The transcript of testimony and exhibits covers 225 pages. A dozen or more witnesses testified. Appellants’ summary of the evidence covers 21 pages of brief and appellee’s statement of facts covers 32 pages of brief. We will not undertake to restate testimony favorable to appellants but will refer to testimony which will sustain the court’s finding.
W. H. Neal, Jr., secretary of the local since 1959, testified that he had been operating in the Birmingham area since 1935, had been initiated into Union in 1935, and was the son of a Union member. He testified that he participated in the trial of complainant when he was expelled from the Union; that complainant was expelled because “he violated the oath that he took of the union”; that complainant signed an oath to uphold rules, regulations, and laws but he did not uphold them and said he would not do it in the future and did not; [477]*477that the rule complainant would not uphold was the “seniority provision” which “is not found in the constitution, by-laws anywhere.” The witness testified that he wrote the seniority law himself,5 that it was distributed to the members. The witness testified in substance that the seniority list was based on card numbers, with the smallest number at the top and the largest number at the bottom.6
[478]*478W. H. Neal, Jr., testified that J. C. Harper is next to last man on list but he was hot the next to last listed man to come into this area to be given work initially; that the witness is No. 11 and C. T. Gaston is No. 19, but Gaston was working here, “off and on,” when the witness started to work.
Earl E. Jones, former business agent of the Union, testified that, at the time he came to the area and started working, C. T. Gaston, Cary Mathews, H. W. Walker, Fred Ware, and others were already working.7
There is ample evidence to support the court’s finding that the list is a roster of Union membership as it existed immediately prior to expulsion of complainant and that the list, in practical effect, insures that the only persons who will be regularly employed by Waters, or any other employer in the area, are those persons whose names appear at the top of the list solely by reason of the date of their initiation into the Union. There is evidence which supports a finding that operators were assigned to jobs in accordance with their position on the list and that the operators who were higher on the list “rolled” those lower on the list when jobs ceased to exist. The court saw and heard the witnesses and is the judge of their credibility. We would not be justified in holding that the findings of the trial court are plainly and palpably wrong.
There is ample evidence to support a finding that complainant was “rolled” from his jobs at Fair Park and Robinwood, and denied continuation of employment by Waters, because he was junior on the seniority list to the men who “rolled” him.
[479]*479On the principal issue of fact, we are of opinion that respondents’ contentions are not sustained by the record.
2.
Beginning on page 55 of brief, respondents argue that neither the contract, nor the application thereof, in any way violated the Right to Work Law, and therefore, complainant is not entitled to the money judgment or the injunctive relief decreed by the court.
Respondents cite fifty-one cases in brief and present various arguments to show error. We have read all the cases cited by respondents as well as the thirty-six cases cited by complainant, and also some other authorities. We will not undertake to answer seriatim the fourteen arguments' in respondents’ brief but will reply to those which we think should be answered.
We do not think that we are compelled to find that the contract, on its face, violates the Right to Work Law, but we do hold that, as construed and applied by respondents with respect to complainant’s right to continuation of employment by Waters, the contract does violate the Right to Work Law and that complainant did sustain damages as the result of violation of § 375(3) of Title 26, which provides:
“No person shall be required by an employer to become or remain a member of any labor union . . . . as a condition of ... . continuation of employment.”
In order to hold that this contract, as interpreted and applied by respondents, is not a violation of § 375(3), we would have to hold that a contract, which réquires seniority based on longevity of union membership as a condition of continuation of employment, does not require an employee to become a member of the union. We are of opinion that a contract, which makes longevity of union membership such a condition, makes union membership itself a condition of continuation of employment. In order to have longevity of union membership, the employee must first have union membership. Unless he has union membership, he cannot have any longevity of membership.
In the instant case, complainant was “rolled” and his employment finally terminated because he did not have as much longevity of union membership as the man who was given complainant’s job. Respondents denied continuation of employment to complainant because he did not have sufficient longevity of union membership.
We hold that complainant was denied continuation of employment because longevity of union membership was made a condition of continuation of his employment. It necessarily follows, as we see it, that he was entitled to a money judgment for the damage he suffered because he was denied continuation of employment in violation of § 375(3).
Of all the cases cited in briefs, only one appears to deal with seniority based on longevity of union membership. That case arose under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and not under a Right to Work Law. The National Labor Relations Board found a union guilty of violating the statute:
“. . . . (1) in having caused the employer to discriminate against five of its employees, in violation of section 8(a) (3) of the Act, by assigning them work on the basis of seniority determined by the date of their membership in the union instead of the date of their employment, and (2) in having maintained, renewed and enforced a contract with the employer, giving the union the right to settle all controversies over employees’ seniority, and so improperly causing, in the Board’s judgment, the employees to be induced to join the union.
“The contract between the union and the employer contained a general provision that ‘Seniority rights for employees shall prevail’, and a requirement that a list of the employees, arranged in the [480]*480order of their seniority, should he kept posted on the employer’s premises. There was, however, a special clause in the agreement, under which, as noted above, the union was to have the authority to settle all controversies or questions of seniority. The union accordingly prepared the seniority lists for posting by the employer and made the seniority of each employee turn upon the date that he had become a member of the union. The five employees here involved, who had not immediately joined the union when their employment began, were thus given seniority ranks below those of others who had been employed later but had promptly taken out union membership. The rankings so set out in the posted list did not, however, cause the five employees to be pecuniarily affected, until some time later, when the subsequent employees referred to were allowed to claim work priorities over them as a matter of seniority rights.” National Labor Relations Board v. International Brotherhood, 8 Cir., 225 F.2d 343, 345.
The court said:
“ . . . . On the circumstances involved, the seniority list was an illegal one under the Act and so was properly subject to being refused application by the employer in any affecting work-situation that might arise.....” 225 F.2d at page 346.
The cited case is not directly in point, but the holding does appear to us to support our holding that to require longevity of union membership as a condition of continuation of employment is to require union membership as such a condition.
3.
Respondents contend that complainant is barred from asserting the illegality of the contract because he acquiesced in, was governed by, and took advantage of the seniority practices of the union and did not object to his position on the list when he was given opportunity to object.
§ 375(1), Title 26, recites:
“It is hereby declared to be the public policy of Alabama that the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization.”
We have said that the instant contract as applied by respondents violated the statute. It must follow that the contract as so applied violated the public policy of this state as declared by the Legislature.
Ordinarily a person may waive the benefit of a rule of law or statute enacted for his benefit when it is exclusively a matter of private right, but not when the public policy or morals are involved. Webb v. Bank of Brewton, 265 Ala. 568, 574, 93 So.2d 154.
It is generally considered that, as between the parties to a contract, validity cannot be given to it by estoppel if it is prohibited by law or is against public policy. Standard Chemical Co. v. Barbaree, 239 Ala. 601, 602, 195 So. 892.
Because the instant contract as applied by respondents violated public policy, complainant could not give the contract validity by waiver or estoppel and is not now barred from asserting its invalidity.
4.
Respondent Union asserts that the court erred in overruling Union’s demurrer to the bill of complaint because it “is not a sufficient pleading upon which to base injunctive relief because there are insufficient allegations that the complainant will suffer irreparable damages so as to warrant the issuance of an injunction. But it is necessary to allege such facts.”
In the amended bill complainant avers:
“ ‘Complainant avers that his loss or deprivation of employment is as a direct [481]*481result of the operation of the herein-above-described contract, that he is without any means of support, and that he will suffer irreparable injuries and damages if equitable relief is not afforded in the premises.’ ”
The relief sought is not to enjoin a breach of contract of employment. Complainant seeks, in substance, to enjoin respondents from depriving complainant of employment or continuation of employment, or of interfering with his right to employment, by application of the contract in an unlawful manner which violates the public policy of this state.
Waters did not file a demurrer to the bill of complaint. The demurrer was filed by the Union, and, if the court erred in overruling the demurrer, it is an error of which the Union only, and not Waters, can complain. A respondent, who did not demur to the bill of complaint, cannot complain of the overruling of a demurrer interposed alone by another respondent in its own behalf. Shiff & Son v. Andress, 147 Ala. 690, 40 So. 824, 825; Larkin v. Haralson, 189 Ala. 147, 66 So. 459; Watt v. Combs, 244 Ala. 31, 37, 12 So.2d 189, 145 A.L.R. 667.
Complainant alleges that he has been deprived of his employment “as a direct result of the operation of the hereinabove-described contract,” and that “he is without any means of support.” These are allegations of fact on which issue can be taken and evidence introduced to determine the truth of these allegations.
One’s employment, trade, or calling is a property right and the wrongful interference therewith is an actionable wrong. Bowen v. Morris, 219 Ala. 689, 691, 123 So. 222.
In the last cited case, in reversing a decree dissolving a temporary injunction which restrained respondents from causing to issue any writ of garnishment against complainant’s employer to collect an allegedly spurious claim, and from “turning in” to the employer an assignment of wages which complainant had executed, this court considered the adequacy of the remedy at law to give relief to complainant if he should be discharged by his employer. Complainant had alleged in the bill that he would be discharged if garnishment issued and the assignment of wages was “turned in.” With respect to adequacy of the remedy at law, this court said:
“ . . . . we are at the conclusion the remedy at law for the wrongful acts here complained of is not full, complete, and adequate.
“Necessarily, the actual damages resulting from a discharge of this complainant by his employer, severing his long relations, and putting him to the task of finding a new job, may be one for which he is untrained, is quite indefinite. This is rendered more uncertain because of no fixed tenure of employment. Moreover, we have held that wounded feelings, the humiliation, and anxiety to result from such wrongful act of respondent is proper matter of damages. But such damages are not subject to any pecuniary standard of measurement. This fact is one recognized as a basis for injunctive relief. 32 C.J. 136, § 181.
“Awaiting the uncertainties as to quantum of damages, the delay in recovery which within itself, in a case like this, may increase them, are matters going to the adequacy of legal remedies.” (219 Ala. at page 691, 123 So. at page 223)
In 1915, in Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, complainant sought to enjoin enforcement of a legislative act alleged to be unconstitutional. Complainant alleged that enforcement of the act would cause his discharge from employment. In affirming the decree granting an interlocutory injunction against enforcement of the [482]*482act, the Supreme Court of the United States said:
“ . The right to earn a livelihood and to continue in employment unmolested by efforts to enforce void enactments should similarly be entitled to protection in the absence of adequate remedy at law. It is said that the bill does not show an employment for a term, and that under an employment at will the complainant could be discharged at any time for any reason or for no reason, the motive of the employer being immaterial. The conclusion, however, that is sought to be drawn is too broad. The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others.....It sufficiently appears that the discharge of the complainant will be solely for the purpose of meeting of the requirements of the act and avoiding threatened prosecution under its provisions. It is, therefore, idle to call the injury indirect or remote. It is also entirely clear that unless the enforcement ' of the act is restrained the complainant will have no adequate remedy, and hence we think that the case falls within the class in which, if the unconstitutional-ity of the act is shown, equitable relief may be had.” (239 U.S. at pages 38 and 39, 36 S.Ct. at page 9)
With respect to the granting of injunctions, the Illinois Appellate Court for the Second District said:
“Injury to property, whether actual or prospective, is the foundation upon which the jurisdiction of equity rests: People v. McWeeney 1913 259 Ill. 161, 102 N.E. 233; and there are a number of legal rights in which there is a property interest but which, because of their personal and peculiar character, could not be transferred, but as to which equity will interfere to protect against deprivation of employment: . . . . The right to earn a livelihood and to continue in employment unmolested by any illegal or unjustified molestation or interference of third persons is similarly entitled to equity’s protection in the absence of an adequate remedy at law, even though the employment be at the will of the employer and/or employee and not for any definite term, — it is nevertheless not at the will of third persons: Truax v. Raich 1915 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131.” O’Brien v. Matual, 14 Ill.App.2d 173, 192, 193, 144 N.E.2d 446, 455.
In the instant case, complainant had a right to earn a livelihood, unmolested by the Union’s application of the contract in violation of the public policy of this state as declared by the legislature. Under the authority of Bowen v. Morris, supra, the remedy at law was not adequate.
We are of opinion that the averments that complainant has been deprived of employment, that he is not employed, and “that he is without any means of support,” are sufficient averments of facts to show that he will suffer irreparable injuries unless afforded equitable relief.
The court did not err in overruling that ground of demurrer which the Union relies on to assert that insufficient facts are alleged to show that complainant will suffer irreparable damages.
5.
Respondents’ 75th assignment is that the court “erred in considering the requirement of (Section 16 of) the constitution of the International Union . . . . that all operators’ jobs be filled by its own members.” (Emphasis Supplied and Parenthesis Added)
Although under strict application of the rules governing assignment of errors this may not be a good assignment, we consider it in connection with Assignment 42 which appears to be a proper assignment.
When Section 16 was offered by complainant, the witness J. B. Colley, business [483]*483agent of the Local, had already testified as follows:
“Q You have to write the contract to conform to the International re- ■ quirements?
“A That is right.
“Q And is it your statement that this contract conforms to the International requirements?
“A That is right, it has been approved by the International.”
After the Local had objected and Section 16 had been admitted, the witness testified further:
“MR. VANCE: Now, Mr. Colley, if the provisions that says locals are required to insist that all positions within their jurisdiction be filled by their own members; you have undertaken to do that in the past except where you ran short of members, have you not?
“A That is right.
“Q All right, sir. And still do except where you don’t have enough members to go around ?
“A That is right.”
As we understand the record, Colley testified that the Local did exactly what Section 16 required. Section 16 throws light on the action of the Local, acting by and through the business agent, in assigning operators to job openings. In the light of the testimony of the business agent, we think Section 16 was relevant and admissible, and properly considered by the court in deciding how the contract with Waters had been construed and applied by the Local.
In Assignment 42, respondents complain that the court erred in incorporating in final decree the following finding:
“ . . . . The constitution of the international union, with which the respondent local is affiliated, requires that each member local insist that all operators’ jobs be.filled by its own members. According to the testimony of the union’s business agent, which in this respect the Court accepts as fact, the agreement in question, as applied by the parties, conforms to the requirements of that constitution . . . . ”
Colley testified that the contract conformed to the International requirements and had been approved by the International. When asked if “you have undertaken to do that in the past” and “still do,” he answered in the affirmative. We think the testimony supports the finding. It was for the trial court to determine the credibility of witnesses and weigh the evidence.
Cross Assignments.
On February 20, 1964, the court rendered final decree wherein the court decreed that' complainant recover of respondents $1,987.-50.
On March 2, 1964, Waters filed application for rehearing which was presented to the trial judge and by him set for argument on March 25, 1964.
On March 19, 1964, the Union filed its application for rehearing and presented it to a different judge of the same circuit who set the application for hearing before the trial judge on March 26, 1964.
On March 25, 1964, the trial judge continued both applications to April 3, 1964. We find in the record no subsequent order of continuance.
On April 27, 1964, the trial court rendered decree modifying the decree of February 20, 1964, by “eliminating the allowance to the complainant of the attorneys’ fee of Seven Hundred and Fifty (750) Dollars,” and overruling the applications for rehearing in all other respects. The result of the modification would-be to reduce the money awarded to complainant by the amount of $750.00.
[484]*484Complainant cross assigns for error that the court erred in entering its decree on application for rehearing.
§ 119, Title 13, Code 1940, provides that after the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial, has been filed and called to the attention of the court and an order entered continuing the motion for hearing to a future day. Equity Rule 62 provides that a party must file application for rehearing with the register and present same to the judge who rendered the decree within thirty days from the date of said decree.
By its terms, § 119, Title 13, applies to decrees in equity as well as to judgments at law. This court has said that: “A motion for the rehearing of a modified final decree may be made under section 119, Title 13, Code within thirty days after such decree is rendered . . . .” Evett v. Mitchell, 251 Ala. 22, 26, 36 So.2d 98. In so far as the requirements for timely filing, presentation to the judge, and orders of continuance are concerned, we hold that § 119, Title 13, applies equally to judgments at law and decrees in equity.
So far as the instant record discloses, by order made on March 25, 1964, the applications for rehearing were regularly continued to April 3, 1964, but no order was made on or prior to that date continuing the applications to any later date or showing that the applications were heard, or submitted, and taken under advisement by the court on April 3, 1964. The next entry with respect to the applications is the decree of modification made on April 27, 1964.
When a motion for a new trial or rehearing is now continued to a future date beyond the time limit fixed by § 119, Title 13, there is no further limitation or impediment arising from a term of court. The motion or application, when submitted on the date to which it is continued as authorized in § 119, is in the breast of the court and no further continuance is necessary to suspend the finality of the original judgment or decree. But the record must contain some showing or statement of submission. Greer v. Heyer, 216 Ala. 229, 113 So. 14; Shelley v. Clark, 267 Ala. 621, 103 So.2d 743; Holman v. Baker, 277 Ala. 310, 318, 169 So.2d 429, on rehearing, paragraph [10, 11].
The instant record contains no showing or statement of submission, or order of continuance, made prior to or on April 3, 1964, which is the latest date to which the hearing on the applications was regularly continued. Because of the absence of such a proper showing or order of continuance, the applications were discontinued after April 3, 1964. We have found nothing in the record which shows that complainant thereafter waived the discontinuance. Greer v. Heyer, supra.
Because the applications had been discontinued, the court erred in rendering the decree of modification on April 27, 1964, and that decree is reversed and held for naught, and the decree of February 20, 1964, stands as the final decree in the cause.
In answer to this cross assignment, appellants state in brief that on April 3,1964, the trial judge advised that it was not his custom to hear oral argument on application for rehearing and that all parties, through their counsel, consented that argument be presented in writing; that Waters presented argument in memorandum on that day; that the Union presented argument by memorandum on April 6, 1964; that appellee presented argument by memorandum dated April 9, 1964; and that, by memorandum dated April 11, 1964, Waters presented argument in reply. Appellants say that it is their position that the applications for rehearing were submitted April 3, 1964.
[485]*485It has long been the rule that the appellate court will not consider matters “found, in the brief, but not in the record, where, to avail, it must be.” Central of Georgia R. Co. v. Ashley, 159 Ala. 145, 158, 48 So. 981, 985. “We cannot consider a matter which does not appear in the record on appeal.” Cash v. Usrey, 278 Ala. 313, 315, 178 So.2d 91, 93. See cases cited in Ala. Digest, Appeal and Error, <®=>714(5).
Appellants say that “ . . . . this Court has recognized that successive continuances are unnecessary to preserve the jurisdiction of the court where the motion has been heard, and taken under consideration. Cooper v. Owen, 230 Ala. 316, 161 So. 98; Ex parte Drivers, Inc., Horne v. Drivers, Inc., 138 So. 427, 24 Ala.App. 557.
In Cooper, this court said: “Since this record shows that the motion was submitted and taken under consideration at a time when the court had the right to do so, and was not carried beyond that term before action was taken by it, the court had the power to act on the motion when it was overruled.....” (230 Ala. at page 318, 161 So. at page 99)
In Drivers, the plaintiff applied for mandamus to require the trial judge to vacate an order granting a new trial. The answer of the judge stated that the motion had been submitted and taken under advisement by agreement of counsel for both parties on the day to which the motion had been regularly continued. The Court of Appeals sustained the action of the trial judge in granting the new trial and denied the writ. Without deciding whether the decision in Drivers is correct, we distinguish it from the instant case in that the Court of Appeals, in Drivers, had before it the trial judge’s answer stating that the motion had been submitted on a day when the court had the power to take the motion under submission. The cases cited do not support the argument as appellants seek to apply it to the instant case where the record does not show that the applications were submitted at a time when the court had a right to have the applications submitted.
We are of opinion that, according to the instant record, the court erred in rendering the decree of modification on April 27, 1964, because the applications for rehearing had been discontinued.
Other cross assignments have been considered. We are not persuaded that further error is shown which requires reversal or which would justify further extension of this lengthy opinion.
The decree of April 27, 1964, on rehearing is reversed, and the cause is remanded with directions that decree be rendered dismissing the applications.
The decree of February 20, 1964, is affirmed.
Affirmed in part.
Reversed and remanded in part with directions.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur.