Opinion
SC 848.
April 3, 1975.
Appeal from the Circuit Court, Henry County, Forrest L. Adams, J.
D. Coleman Yarbrough, Montgomery, for appellant.
Disability of a party is a basis for continuance. Ex Parte Central Ala. Dry Goods Co., 238 Ala. 20, 189 So. 56; 17 C.J.S. Continuances § 29(a). Illness of counsel is a valid ground for continuance. Arnett v. Peterson, 24 Ariz. 405, 210 P. 683; Dennard v. Farmers Merchants Bank of Coolidge, 151 Ga. 445, 107 S.E. 56.
T. R. Ward, Halstead, Whiddon Woodham, Abbeville, for appellees.
No assignments of error can be made upon decree which does not support appeal. Comer v. Lumbaugh, 256 Ala. 655, 57 So.2d 72; Rush v. Newsom Exterminators, 261 Ala. 610, 75 So.2d 112. A decree denying an application for rehearing will not support an appeal. Starnes v. Brassell, 286 Ala. 437, 241 So.2d 109; Gamble's Insurance v. Kansas City Title Ins. Co., 286 Ala. 437, 217 So.2d 923; Taylor v. Major Finance Co., Inc., 289 Ala. 458, 268 So.2d 738; Taylor v. Major Finance Co., Inc., 292 Ala. 643, 299 So.2d 247. An order of the trial judge denying the motion to set aside the original decree will not support an appeal. Harper v. Harper, 47 Ala. App. 81, 250 So.2d 686; Schmidt v. Schmidt, 291 Ala. 543, 283 So.2d 601. No appeal will lie from an order of the Court denying a motion to set aside a dismissal or for a rehearing in said cause unless such order modifies the decree. Equity Rule 62; Odom v. Jeffords, 281 Ala. 512, 205 So.2d 591.
This appeal is taken by plaintiff below, Hinton, from a "Decree" denying his "Motion For Rehearing." Defendants (appellees) filed a "Motion to Strike" (assignments of error) and "Motion To Dismiss" (the appeal). Grounds of the motion to dismiss included one asserting that the decree is not reviewable on appeal.
Hinton filed a bill to contest a will, pursuant to Code of Ala., Tit. 61, § 64. Upon his failure to appear for the hearing of that contest a decree was entered dismissing the bill. Hinton filed his motion to set aside the decree of dismissal. He failed to appear for a hearing of that motion; as a consequence an order was entered denying his motion. He then filed a motion for rehearing. At a hearing of the latter motion, testimony was taken before the trial judge. Following that hearing, the decree was entered from which this appeal is taken.
Granting or denying an application for a rehearing rests within the sound discretion of the trial court. When such sound discretion is exercised to deny an application, that action is not reviewable on appeal. Russell v. Crenshaw, 283 Ala. 59, 214 So.2d 333; Withers v. Burton, 268 Ala. 365, 106 So.2d 876. See also ARCP 59(a) and comments. This decision is rendered under authority of Code of Ala., Tit. 13, § 66.
Appeal dismissed.
HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.