O'Neal v. Kelly

72 Ala. 559

• Court: Supreme Court of Alabama
• Decided: December 15, 1882
• Status: Published

Opinion

Per Curiam.

-At one time, there was some conflict in the decisions of this court, as to the proper mode of introducing here, for revision, the action of the City or Circuit Courts in granting or refusing applications for a rehearing under the statute. — Code of 1876, §§ 3160-61. To remove all uncertainty, in Ex parte North (49 Ala. 385), following the earlier decisions, it was announced, that from a judgment refusing the application for a rehearing an appeal would lie, because that judgment is final, disposing of the case; but, if the application was erroneously granted, the order granting it was not a final judgment — its effect was, not a disposition of the case, but its restoration to the docket for a new trial; and prior to final judgment, the only remedy for the correction of the error is-mandamus. This is the practice which has. been since pursued—Heflyn v. Rock Mills, 58 Ala. 613.

The motion to dismiss the present appeal, taken from an order granting a rehearing, must, therefore, be sustained.