Opinion
7 Div. 156.
December 22, 1932.
Appeal from the Circuit Court, Etowah County; Hon. O. A. Steele, Judge.
L. B. Rainey, of Gadsden, for appellant.
The decree was rendered in vacation, and petition for rehearing must have been filed by the second day of the ensuing term. The order vacating the decree was improper and mandamus lies to set it aside. Code 1923, § 6667; Chancery Rules, 78, 81, 4 Code, 1923, 931, 932; Zaner v. Thrower, 203 Ala. 650, 84 So. 820; Shine v. Bolling, 82 Ala. 415, 2 So. 533; Johnson v. Johnson, 182 Ala. 376, 62 So. 706; Johnson v. Inman, 223 Ala. 513, 137 So. 293; Georgia Pac. R. Co. v. Gaines, 88 Ala. 377, 7 So. 382; Stein v. Dahm, 96 Ala. 481, 11 So. 597; Hale v. Kinnaird, 200 Ala. 596, 76 So. 954; Ex parte Jones, 133 Ala. 212, 32 So. 643; Ex parte Woodruff, 123 Ala. 99, 26 So. 509; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Tower M. Co., 103 Ala. 415, 15 So. 836; Ex parte Merritt, 142 Ala. 117, 38 So. 183; Ex parte Watters, 180 Ala. 523, 61 So. 904; 13 Ency. Pl. Pr. 561; Ex parte Fletcher, ante, p. 139, 142 So. 30; Ex parte Jones, 172 Ala. 186, 55 So. 491; Morris v. Corona Coal Co., 215 Ala. 47, 109 So. 278; State v. Cunninghame, 216 Ala. 423, 113 So. 309; Moss v. Winston, 218 Ala. 364, 118 So. 739.
E. G. Pilcher and Goodhue Lusk, all of Gadsden, for appellee.
The statutes have established a term for the equity court which begins on the day after a decree and expires after thirty days and within which time the court has jurisdiction to entertain a motion or petition to set aside the decree. Code 1923, §§ 6636, 6670; Gibson v. Farmers' Bank, 218 Ala. 554, 119 So. 664; Chilton v. Gurganus, 218 Ala. 145, 117 So. 655.
On December 29, 1930, Mary Estelle Favors obtained a decree of divorce from her husband, George W. Favors.
On January 14, 1931, within thirty days after the rendition of the decree of divorce, the court rendering the decree, did, on application of complainant in whose favor the decree had been granted, enter a decree or order vacating the decree of divorce and dismissing the bill out of court.
By the present proceeding, original mandamus in this court, the husband seeks to have this latter order or decree vacated and set aside.
The theory of the petitioner is that the decree of divorce was rendered in vacation as defined by Code, § 6667, and that the court was without jurisdiction or authority to vacate the same except upon application filed by the second day of the next ensuing term under Chancery Rule 78.
It is sufficient to say that Code, § 6667, has no application to equity proceedings; Code, § 6636, governs. By that section the court is always open for equity business, and decrees become final after thirty days.
During this thirty-day period the cause is within the breast of the court, with full power to vacate the decree on application or ex mero motu. Rule 78 no longer has application to the matters here presented. Ex parte Howard (Howard v. Ridgeway) (Ala. Sup.) 142 So. 403; Gibson v. Farmers' Bank of Luverne, 218 Ala. 554, 119 So. 664; Anderson v. Steiner, 217 Ala. 85, 115 So. 4; Chilton v. Gurganus, 218 Ala. 145, 117 So. 655.
Ante, p. 106.
Mandamus denied.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.