Wood v. Finney

GARDNER, J. In a cause on the equity docket of the circuit court of Madison county, wherein appellant was complainant and appellee respondent, a final decree in favor of the complainant was rendered on July 28, 1921. On September 24th thereafter the respondent filed his petition to have said decree set aside upon numerous grounds at this time unnecessary to consider, and on October 6th the court, being of the opinion the final decree was improvidently rendered, entered an order granting the respondent’s motion and vacating and setting aside said decree reinstating the cause on the docket. From this decretal order the complainant has prosecuted this appeal. [1-3] Appeals are entirely of statutory creation. Ex parte Jones, 186 Ala. 567, 64 South. 960. That the order appealed from is not a final decree, so as to come within the provisions of section 2837 of the Code, needs no discussion. It is an interlocutory order of a character not embraced in section 2838 of the Code, and we are aware of no statute authorizing an appeal from such an order. The question is a jurisdictional one, and it is therefore the duty of the court to dismiss the appeal ex mero motu. Long v. Winona Coal Co. (Ala. Sup.) 89 South. 788 ; 1 Wise v. Spears, 200 Ala. 695, 76 South. 869; Coker v. Fountain, 200 Ala. 95, 75 South, 471. Appeal dismissed. ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.