Wertheimer v. Ridgeway

47 So. 569, 157 Ala. 398, 1908 Ala. LEXIS 167

Opinion

DOWDELL, J.

— The appeal in this case is taken from an order of the circuit judge, made in vacation, denying the petition of appellant, asking for a rehearing, under section 3342 of the Code of 1896. The case is here submitted primarily on motion to' dismiss the appeal. This motion must prevail.

The judgment appealed from is unauthorized, and consequently a nullity. The judgment was rendered, not by any court, but by the judge in vacation. The statute (section 3346) provides that such petition, as in this case, must be tried by the court. — Ex parte Farquhar & Son, 99 Ala. 375, 11 South. 913. The judgment being a nullity, will not support an appeal. —Adams v. Wright, 129 Ala. 305, 30 South. 574. The cases cited by appellant were appeals from judgments of the court, and therefore do not apply here.

The appeal is dismissed.

Tyson, C. J., and Anderson and McClellan, JJ., concur.