Truss v. Birmingham, L.G. & M.R. Co.
| Decision Date | 27 July 1892 |
| Citation | 96 Ala. 316,11 So. 454 |
| Court | Alabama Supreme Court |
| Parties | TRUSS v. BIRMINGHAM, L. G. & M. R. CO. ET AL. |
Appeal from city court of Birmingham; WILLIAM W. WILKERSON, Judge.
Action by J. D. Truss against the Birmingham, La Grange & Macon Railroad Company and others. From an order setting aside a default, plaintiff appeals. Appeal dismissed.
Wade & Vaughan, for appellant.
Webb & Tillman, for appellees.
The appeal in this case is taken from an order of the city court of Birmingham setting aside a judgment by default against appellees. The motion to set aside the judgment by default was based on grounds which questioned the legality of the judgment, and also on the ground that appellees' counsel was prevented by sickness from giving attention to the case. The city court granted the motion, basing its order in express terms on the grounds first above mentioned; and appellant, plaintiff in the court below, reserved an exception to the ruling of the court by a bill of exceptions duly signed. The case is submitted in this court, together with a motion by appellees to dismiss the appeal. The motion to dismiss the appeal must prevail, and for this reason we do not consider the questions reserved for this court by the bill of exceptions. An order of judgment setting aside a default is interlocutory in its nature, and is the exercise of a discretionary power. Allen v. Lumber Co., 90 Ala. 490, 8 South. Rep. 129. The act of February 16, 1891 (Acts 1890-91, p. 779,) was not designed to take away from nisi prius courts their inherent power, in the exercise of a sound judicial discretion, to set aside defaults at the term at which they are entered; it only provides for an appeal from the decisions of circuit and city courts, "granting or refusing to grant 'new trials."' This language can by reasonable construction be applied only to a case in which there has been one trial of fact, and a party seeks another, or a new trial, unless it appears there was a writ of inquiry as to damages, and the defendant appeared or was heard at the assessment of such damages. A default implies that there has been no trial; that the defendant failed to appear to claim or resist a trial. A "new trial" is defined to be a "re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees." 1 Hayne, New Trials & App. p. 23, § 1; Hil. New Trials, p. 1,§ 1; Jenkins v....
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