Opinion
6 Div. 547.
January 15, 1948. Rehearing Denied February 26, 1948.
Appeal from Circuit Court, Jefferson County; J. Russell McElroy, Judge.
Warren Upton, of Birmingham, and Ed Wetzel pro se, for appellant.
Objection of appellant to dismissal and motion for reinstatement of cause should have been sustained. Kabase v. State, 31 Ala. App. 77, 12 So.2d 758; Leach v. State, 245 Ala. 539, 18 So.2d 289; Moore v. State, 30 Ala. App. 552, 9 So.2d 146; Blue v. State, 246 Ala. 73, 19 So.2d 11; Wolff v. McGaugh, 175 Ala. 299, 57 So. 754; Shelton v. Sydnor, 126 Va. 625, 102 S.E. 83.
Lange, Simpson, Robinson Somerville, of Birmingham, for appellee.
Appeal does not lie from order overruling motion for reinstatement after case has been dismissed for want of prosecution; mandamus is proper remedy. Circuit Court Rule 11; Garaca v. Lusco, 232 Ala. 573, 169 So. 12; Sov. Camp W. O. W. v. Gay, 213 Ala. 5, 104 So. 898; Ex parte Parker, 172 Ala. 136, 54 So. 572; Brazel v. New So. Coal Co., 131 Ala. 416, 418, 30 So. 832. Special notice of setting of case is not required where case is called at regular term. Sov. Camp, W. O. W. v. Gay, 20 Ala. App. 650, 104 So. 895. Refusal to set aside judgment by default is within sound discretion of trial court. Allen v. Lathrop-Hatton Lbr. Co., 90 Ala. 490, 8 So. 129; Sov. Camp, W. O. W. v. Gay, 20 Ala. App. 650, 104 So. 895; Ex parte Anderson, 242 Ala. 31, 4 So.2d 420; DuPree v. Hart, 242 Ala. 690, 8 So.2d 183; Garaca v. Lusco, supra; Ex parte Wetzel, 243 Ala. 130, 8 So.2d 824; Code 1940, Tit. 7, § 482.
After final judgment dismissing the plaintiff's case for want of prosecution, he made motion to set aside the judgment of dismissal on the ground that he had a meritorious case and had no notice that the case was set for trial. The motion was overruled.
There is nothing in the motion to show that the plaintiff was misled by any action of the court or its officers or by the adverse party. Williams v. Tyler, 14 Ala. App. 591, 71 So. 51; Ex parte Tyler, 198 Ala. 696, 73 So. 1002. As the aggressive party in the case it was plaintiff's duty to follow his case in all of its steps until finally disposed of and no duty rested upon the court or its officers or the adverse party to advise plaintiff of the setting of the case for trial.
The motion to set the judgment aside and restore the case to the docket was addressed to the sound discretion of the court and is not reviewable on appeal. Carmichael v. Jones Bro., 16 Ala. App. 194, 76 So. 478; Hamrick v. Town of Albertville, 228 Ala. 666, 155 So. 87.
If the appeal be referred to the final judgment, it at most sustains the jurisdiction here, and on its face is free from error.
There are no assignments of error on the record and the judgment is due to be affirmed. Redd Chemical Nitrate Co. v. W. T. Clay Mercantile Co., 219 Ala. 478, 122 So. 652.
Affirmed.
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.