Ex parte Morris , 44 Ala. 361 ( 1870 )

PECK, C. J.

The order and judgment of said court, setting aside, &c., the applicants’ judgment, rendered at the spring term of said court, 1868, for the reasons stated in the said order and judgment, is undoubtedly erroneous. After the rendition of said judgment and the final adjournment of the court, the power of said court over said judgment, except to correct clerical errors, &o., ceased to exist.— Van Dyke v. The State, 22 Ala. 57. But all this being admitted, can the error of the said court be corrected on such an application as this ? We think not. The order and judgment of the court setting aside the applicant’s judgment, and declaring it null and void, and taxing them with the costs, is a final judgment, and an appeal, and not a mandamus, is the proper remedy to correct the error or errors in said order and judgment.

At the last term, in the case of Broyles v. Maddox, we indicated the proper practice in such cases. In this case, if the circuit court had set aside the applicant’s judgment^ and in the same order had granted a new trial, then, the remedy before final judgment, would have been by a mandamus ; in such ease, there would have been no final judgment ; the new trial would have left the original cause still pending and undetermined in that court.

We presume, on a new application to the circuit court, what is here indicated will induce the said circuit court to set aside and vacate the said order, declaring the said judgment null and void, and order an execution to be issued on the applicants’ said judgment against the said Lewis Christian.

The application for a mandamus is denied, at the applicants’ costs.