Williams v. Knight , 233 Ala. 42 ( 1936 )

This case was dismissed on first appeal for failure to perfect the appeal against necessary parties. Williams, Superintendent of Banks, et al. v. Knight, 232 Ala. 206,167 So. 284.

The cause was submitted on motion and on merits.

The effect of our statute and decisions is, that an appeal taken more than six months after a final decree deprives this court of jurisdiction to hear and determine the questions presented on the trial. A belated appeal will be disposed of here by its dismissal. Section 6127, Code; Boshell v. Phillips,207 Ala. 628, 93 So. 576. It is further declared that the refusal to grant an application for rehearing, in equity, is within the discretion of the court and not appealable. Johnson v. Johnson, 215 Ala. 434, 111 So. 7; Alexander v. Letson (Ala.Sup.) 167 So. 265;¹ Hamilton et al. v. James, 231 Ala. 668,166 So. 425; Van Schaick, Superintendent of Insurance of New York, v. Goodwyn et al., 230 Ala. 687, 163 So. 327.

It results from the foregoing decisions that an application for rehearing in equity did not extend the time within which an appeal may be taken. Carlisle et al. v. Carmichael et al.,222 Ala. 182, 131 So. 445; section 6127, Code. It is stated in Chancery Rule 81 that on declining such application "no order must be made on said petition." Vol. 4, Code 1923, p. 932, rule 81; Johnson v. Johnson, supra; Zaner et al. v. Thrower et al.,203 Ala. 650, 84 So. 820.

The final decree was rendered on August 29, 1935; appeal and supersedeas bond is of date of March 30, 1936, "filed and approved" the same day. The application for rehearing (denied on October 5, 1935) did not have the effect of extending the statute beyond the six months' period prescribed for taking an appeal in such case. Thus a question of jurisdiction is presented. The motion to dismiss the appeal is granted.

Appeal dismissed.

ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.

¹ 232 Ala. 208.

On Rehearing.