Wetzel v. Birmingham Electric Co.

33 So. 2d 882, 250 Ala. 267, 1948 Ala. LEXIS 536

• Court: Supreme Court of Alabama
• Decided: January 15, 1948
• Docket: 6 Div. 547.
• Status: Published

Opinion

BROWN, Justice.

After final judgment dismissing the plaintiff’s case for want of prosecution, he made motion to set aside the judgment of dismissal on the ground that he had a meritorious case and had no notice that the case was set for trial. The motion was overruled.

There is nothing in the motion to show that the plaintiff was misled by any action of the court or its officers or by the adverse party. Williams v. Tyler, 14 Ala. App. 591, 71 So. 51; Ex parte Tyler, 198 Ala. 696, 73 So. 1002. As the aggressive party in the case it was plaintiff’s duty to follow his case in all of its steps until finally disposed of and no duty rested upon the court or its officers or the adverse party .to advise plaintiff of the setting of the case for trial.

The motion to set the judgment aside and restore the case to the docket was addressed to the sound discretion of the court and is not reviewable on appeal. Carmichael v. Jones & Bro., 16 Ala.App. 194, 76 So. 478; Hamrick v. Town of Albertville, 228 Ala. 666, 155 So. 87.

If the appeal be referred to the final judgment, it at most sustains the jurisdiction here, and on its face is free from error.

There are no assignments of error on the record and the judgment is due to be affirmed. Redd Chemical & Nitrate Co. v. W. T. Clay Mercantile Co., 219 Ala. 478, 122 So. 652.

Affirmed.

GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ-, concur.