Wertheimer v. Ridgeway

• Decision Date: 12 November 1908
• Citation: 47 So. 569,157 Ala. 398
• Parties: WERTHEIMER v. RIDGEWAY ET AL.
• Court: Alabama Supreme Court

47 So. 569

157 Ala. 398

WERTHEIMER v. RIDGEWAY ET AL.

Supreme Court of Alabama

November 12, 1908

Appeal from Circuit Court, Tallapoosa County; W. W. Pearson, Judge.

Action between Lee Wertheimer, administrator and Ella Ridgeway and others. From a judgment denying the motion of Lee Wertheimer, administrator, for a rehearing, he appeals. Appeal dismissed.

James W. Strother, for appellant.

Lackey & Bridges, for appellees.

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 cause 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 So. 913. The judgment being a nullity, will not support an appeal. Adams v. Wright, 129 Ala. 305, 30 So. 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.