Riemers Company v. Northcutt

116 So. 2d 381, 270 Ala. 51, 1959 Ala. LEXIS 603

• Court: Supreme Court of Alabama
• Decided: December 10, 1959
• Docket: 1 Div. 852
• Status: Published

Opinion

COLEMAN, Justice.

Plaintiff filed suit on promissory note and defendant filed demurrer which was overruled on February 18, 1958. Defendant filed no further pleading and judgment was rendered against him on January 20, 1959. On May 15, 1959, defendant filed motion for rehearing under the four months’ statute, Title 7, § 279, Code 1940. The motion for rehearing was granted by order entered June 16, 1959, and from that order plaintiff has taken the instant appeal. Appellee (defendant) moves to dismiss the appeal on the ground that the order appealed from is not a final judgment which will support an appeal.

Appellee’s motion is well taken.

“The appeal in this case is from the judgment of the circuit court granting the defendant’s motion for a rehearing under what is generally known as the four months’ statute. Code of 1923, § 9521.

“It is the settled rule of our decisions that this judgment will not support an appeal. The insufficiency of the judgment to support an appeal is jurisdictional, and the court will ex mero motu dismiss the appeal. Ingram v. Alabama Power Co., 201 Ala. 13, 75 So. 304; Ex parte North, 49 Ala. 385.” Roniotos v. Peerless Laundry Corporation, 219 Ala. 157, 121 So. 530.

See also O’Neal v. Kelly, 72 Ala. 559; Brazel v. New South Coal Co., 131 Ala. 416, 30 So. 832; Bean v. Harrison, 213 Ala. 33, 104 So. 244; Burger-Phillips Co. v. Phillips, 234 Ala. 563, 176 So. 181; Ex parte New Home Sewing Machine Co., 238 Ala. 159, 189 So. 874.

Appeal dismissed.

LAWSON, STAKELY, GOODWYN, and MERRILL, JJ., concur.