Smith v. Mobley

Per Curiam.

In this case a final decree involving an an accounting as an incident to substantive relief, was rendered by a judge of one circuit sitting in another circuit. A rehearing was granted and a decree awarding an increased amount to the defendant was made by another circuit judge. An appeal was taken from the latter decree. It does not appear that the petition for rehearing was filed within thirty days from the time of pronouncing the decree as required by the statute, Section 3165 Rev. Gen. Stats. 1920 and Rule 90 Equity Rules. But assuming that it was duly filed since it was granted, there appears to be no good ground for granting it. The petition for rehearing states that certain specified items were not allowed by the decree though they were “proved by undisputed testimony.” A consideration of the testimony relative to the items referred to does not show that the first judge overlooked items or that he clearly erred in not including them if they were in fact excluded by the decree. If the defendant was aggrieved by the decree he should have appealed instead of presenting the same record to another circuit judge on a petition for rehearing which does not clearly present matters that should be adjudicated by another judge of equal jurisdiction.

Reversed.

Whitfield, P. J., and Terrell and Buford, J. J., concur. Ellis, C. J., and Strum and Brown, J. J., concur in the opinion and judgment.