New England Mortgage Security Co. v. Davis

TYSON,J. — On the 10th day of September, 1896, at a regular term of the chancery court of Autauga county, the complainant failing to attend and prosecute its suit, on motion of the respondents the chancellor dismissed complainant’s bill for Avant of prosecution. On the 7th day of September, .1897, one year thereafter, at another regular term of said court, the complainant, appellant here, filed a petition seeking to have the decree of dismissal of September 10th, 1896, set aside and the cause re-instated on the docket. The chancellor denied the petition, stating in his decree refusing the petition, that the decree of dismissal of the bill AAras a final decree, and after the adjournment of the court at Avhich it was rendered, the court had no power or control over it. From this decree of the chancellor denying the petition, this appeal is taken, and the same is noAV assigned as error. We think there can be no doubt of the correctness of the ruling by the chancellor. The decree of dismissal of the bill for Avant of prosecution avus as final as a decree of dismissal on the merits, and “unless the court otherAvise orders is equivalent to a dismissal on the merits.” Rule 28, Code of 1896, p. 1208. On an appeal from a decree dismissing a bill for Avant of prosecution, unless it otherwise appears from the record, we are bound to presume, that the cause was called to be heard in court, and complainant made default. The only construction to be given to rule 69, Code of 1896, p. 1217, wherein it is provided that “either party, on timely application, may set aside his default, on such terms as the court may impose,” when taken in connection Avith rule 81, p. 1220, same Code, is that such timely application shall be made at the term at which the decree of dismissal is rendered. It follows, therefore, the decree of dismissal being final, the chancellor had no authority to set the same aside on the petition of complainant, after a final ad [557] journment of the court. — Byrd v. McDaniel, 26 Ala. 582; Ex parte Gist, 119 Ala. 463. There is no error in the record, and the decree of the chancellor is affirmed.