Norris v. Norris

160 So. 2d 10, 276 Ala. 171, 1964 Ala. LEXIS 290

• Court: Supreme Court of Alabama
• Decided: January 16, 1964
• Docket: 6 Div. 982
• Status: Published

Opinion

MERRILL, Justice.

Appellant sued his wife for divorce, alleging cruelty. Appellee denied the charge and filed a cross bill seeking separate maintenance and an allowance for attorney’s fees. The trial court denied relief to the husband and granted the relief sought by appellee in her cross bill. An application for rehearing was denied and this appeal followed.

This appeal is not from the final decree of the court which was entered and filed on January 8, 1963, and amended nunc pro tunc on January 17, 1963, but both the notice of appeal and the bond show that it is taken from the decree of March 11, 1963, which was the decree denying the application for rehearing.

A decree granting or denying an application for rehearing in equity will not support an appeal, unless the decree or order modifies the final decree. Equity Rule 62, Code 1940, Tit. 7, Appendix; Ogle v. Ogle, 270 Ala. 201, 117 So.2d 191, and the fifteen authorities cited therein.

The application for rehearing made no point that the decree to be set aside was void on its face, which would remove-the case from the operation of the rule. Wheeler v. Bullington, 264 Ala. 264, 87 So.2d 27.

It follows that the appeal must be dismissed. Ogle v. Ogle, 270 Ala. 201, 117 So.2d 191.

Appeal dismissed.

LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.