Opinion
7 Div. 379.
June 12, 1917.
Appeal from City Court of Talladega; Marion H. Sims, Judge.
Suit by J. C. Jones Bro. against Moses Carmichael and others. From an order overruling defendants' motion to set aside judgment for plaintiffs by default, defendants appeal, and plaintiffs move to dismiss the appeal. Appeal dismissed.
M.D. Ivey, of Talladega, for appellants. Frank L. Vance, of Talladega, for appellees.
The appellees (plaintiffs in the court below) brought suit against the appellants; the action being based upon a promissory waive note, and commenced in the city court of Talladega by summons and complaint, which was issued by the clerk of said court on the 27th day of July, 1915, and was regularly executed by the sheriff of said county by personal service upon each of the defendants on July 31, 1915. No appearance having been entered for the defendants and no pleadings having been filed by either of them, a judgment by default for the amount sued for was rendered against the defendants, on proof of indebtedness, on the 6th day of September, 1915. On September 30, 1915, defendants (appellants here), made a motion to set aside the judgment by default, and on October 9, 1915, when said motion was heard and determined, the court below overruled said motion to set aside the judgment by default, and from this action of the court the defendants appeal.
Motion is here made by the appellees to dismiss the appeal; the motion being based upon the grounds that it is taken from the order of the city court of Talladega refusing to set aside the judgment by default rendered against the defendants on the 6th day of September, 1915. This motion must be granted, and the appeal dismissed, as no appeal lies to this court from an order of a nisi prius court denying and overruling a motion to set aside a judgment by default and to grant a new trial, and error cannot be assigned upon such action. The motion to set aside the judgment by default was addressed to the sound discretion of the court, and is not, therefore, subject to revision on appeal, and, in the absence of a statutory provision to this effect, cannot be considered by us. Ledbetter Co. et al. v. Vinton, 108 Ala. 644, 18 So. 692; Colley v. Spivey, 127 Ala. 109, 28 So. 574; Haygood v. Tait, 126 Ala. 264, 27 So. 842; Ellis Co. v. Brannon et al., 161 Ala. 573, 49 So. 1034; Allen v. Lathrop-Hatton Lumber Co., 90 Ala. 490, 8 So. 129; Sparks v. J. S. Reeves Co. et al., 165 Ala. 352, 51 So. 574.
Appeal dismissed.