Sealy v. Duncan

EDWARD N. SCRUGGS, Retired Circuit Judge. This is an appeal from an order of the trial court which granted a defendant’s A.R.Civ.P. rule 60(b) motion, set aside a final judgment and reinstated the case. Here, there is no final judgment upon which to base the appeal as existed in Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978). Nor was the motion granted upon the ground that the original judgment was void for want of jurisdiction or authority so as to make the granting of the motion a final disposition of the case and therefore appeal-able as was decided in Littlefield v. Cupps, 371 So.2d 51 (Ala.Civ.App.1979). Consequently, this appeal is governed by the general rule that a judgment granting a rule 60(b) motion and ordering a new trial is purely interlocutory and is not appealable. Fisher v. Bush, 377 So.2d 968 (Ala.1979); Littlefield v. Cupps, supra; Nunn v. Stone, supra; Sullivan v. Speedway Oil Co., 352 So.2d 1383 (Ala.Civ.App.1977); 11 Wright & Miller, Federal Practice and Procedure § 2871, at 259. We have no alternative but to dismiss this appeal. Fisher v. Bush, supra; Sullivan v. Speedway Oil Co., supra. The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court. APPEAL DISMISSED. All the Judges concur.