Belk v. Belk, 275 Ala. 173, 153 So.2d 250; Ex parte Howard, 225 Ala. 106, 142 So. 403. The proceeding and trial by jury as a matter of right is not an independent trial, but a part of the equitable proceeding. Ex parte King, 230 Ala. 529, 162 So. 275; Owens v. Washington, 260 Ala. 198, 69 So.2d 694. * * *" There being no timely motion attacking the verdict of the jury, the equity court should therefore have denied the appellee's motion to set aside the verdict and the final decree entered thereon.
Pettus, Fuller, Reeves Stewart, Selma and Harry B. Cohen, Birmingham, for appellees. Motion for new trial at law must be presented to court of equity in partition proceedings before final decree is entered on the verdict; and motion made after final decree must be overruled. Karter v. East, 220 Ala. 511, 125 So. 655; Karter v. East, 218 Ala. 536, 119 So. 662; Farmers Merchants Bk. v. Jones, 238 Ala. 463, 191 So. 617; Hale v. Cox, 222 Ala. 136, 131 So. 233; Brintle v. Wood, 223 Ala. 472, 136 So. 803; Hill v. Cowart, 251 Ala. 260, 37 So.2d 103; Cook v. Morton, 241 Ala. 188, 1 So.2d 890; Jester v. Jester, 225 Ala. 138, 142 So. 523; Ex parte King, 230 Ala. 529, 162 So. 275; Ex parte Curry, 248 Ala. 384, 27 So.2d 630; Curry v. Holmes, 249 Ala. 545, 32 So.2d 39; Equity Rule 62 Code Tit. 7 App. Rulings on evidence in the trial at law in partition proceedings cannot be assigned as error unless incorporated in a proper motion in the equity court to set aside the verdict of the jury. Karter v. East, supra; Hill v. Cowart, supra; Cook v. Morton, supra; Hale v. Cox, supra.
An interlocutory decree is subject to modification or change at any time before final decree. Carter v. Mitchell, 225 Ala. 287 (21), 142 So. 514; O'Rear v. O'Rear, supra; Ex parte Bozeman, 213 Ala. 223, 104 So. 402; Ex parte King, 230 Ala. 529 (3), 162 So. 275. Rule 62, Equity Practice, Code 1940, Tit. 7 Appendix, was not intended to regulate or limit the power of a court of equity to modify or set aside an interlocutory decree, nor to grant the right of appeal from an order doing so. That rule was evidently intended to put the equity procedure for a new trial on a basis resembling more closely procedure at law in that respect.
Approval and filing of the appeal bond is the event which effects an appeal. Code 1923, § 6101 (b); Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241; Liverpool, c. Co. v. Lowe, 208 Ala. 12, 93 So. 765; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Jacobs v. Goodwater, c. Co., 205 Ala. 112, 87 So. 363; Journequin v. Land, 235 Ala. 29, 177 So. 132. Notice of the appeal need not be given within the six months' period allowed by law for taking an appeal. Code, § 6140; Kimbrell v. Rogers, supra; Ory-Cohen v. Taylor, 208 Ala. 520, 94 So. 525; Thompson v. Menefee, 218 Ala. 332, 118 So. 587; Cochran v. State, 206 Ala. 74, 75, 89 So. 278; Bedwell v. Dean, 221 Ala. 224, 128 So. 389. A chancery court has no power to open or set aside any final decree after lapse of thirty days from the date of its rendition. Code, § 6636; Ex parte King, 230 Ala. 529, 162 So. 275; Van Schaick v. Goodwyn, 230 Ala. 687, 163 So. 327. A mere nominal party, or one who has no real interest in the issues appealed from does not have to be joined on the appeal. Morrison v. Chambers, 212 Ala. 574, 103 So. 666; Brock v. Fidelity Deposit Co., 5 Cir., 86 F.2d 345. When appellants' appeal bond was approved and filed by the register that was the event which definitely effected the appeal; thereupon the lower court lost jurisdiction and complete jurisdiction was thereby transferred to the Supreme Court. Ex parte Hood, 107 Ala. 520, 18 So. 176; Lasseter v. Deas, 9 Ala. App. 564, 63 So. 735.
Jas. A. Embry and W. L. Acuff, both of Ashville, for appellant. A judge sitting in equity is without jurisdiction to render a decree based on a verdict of a jury in the law court until the proceedings in the law court, including the verdict of the jury, have been certified to the equity court by the judge presiding in the law court, although the judge may be the same person in each case. Karter v. East, 220 Ala. 511, 125 So. 655; Id., 218 Ala. 536, 119 So. 662; Id., 215 Ala. 375, 110 So. 610; Ex parte King, 230 Ala. 529, 162 So. 275. A judge sitting in equity is not authorized to render a final decree until there is a submission of the cause. Sims Ch. Pr. § 562; Chancery Rule 77; Pope v. Allinder, 219 Ala. 439, 122 So. 419; Anderson v. Steiner, 217 Ala. 85, 115 So. 4; Zaner v. Thrower, 203 Ala. 650, 84 So. 820; First Nat. Bank v. Harris, 231 Ala. 672, 166 So. 421. Rules of Chancery 75 and 76, requiring a note of testimony, are mandatory, and where the record shows no note of testimony the decree will be reversed.
"But the proceeding and trial by a jury on an issue out of chancery is not an independent trial but is a part of the equitable proceeding. Ex parte King, 230 Ala. 529, 162 So. 275; Karter v. East, 218 Ala. 536, 119 So. 662. And on appeal from the final equitable decree in cases such as the present one, this court can review only those errors committed by the court of equity. Karter v. East, 220 Ala. 511, 125 So. 655; Cook v. Morton, 241 Ala. 188, 1 So.2d 890.
Belk v. Belk, 275 Ala. 173, 153 So.2d 250; Ex parte Howard, 225 Ala. 106, 142 So. 403. The proceeding and trial by jury as a matter of right is not an independent trial, but a part of the equitable proceeding. Ex parte King, 230 Ala. 529, 162 So. 275; Owens v. Washington, 260 Ala. 198, 69 So.2d 694. For further elucidation on the subject see Karter v. East, 218 Ala. 536, 119 So. 662. The foregoing pronouncements with reference to procedure where a jury is available as a matter of right have no application to the instant case, because the court exercised its prerogative in submitting the factual issues to the jury to which neither of the parties was lawfully entitled as a matter of right. Ex parte Howard, supra; Lewis v. Martin, supra.
Ex parte Sparks, 254 Ala. 595, 49 So.2d 296. If there is a decree directing further proceedings under direction of the court in order to make final decree effective such decree is interlocutory and remains within control of court, because such remain in fieri. Ex parte King, 230 Ala. 529, 162 So. 275; Ex parte Sparks, supra. Appellants failed to prove their cross-bill and there was no error in dismissing it on final hearing. Carson v. Sleigh, 201 Ala. 373, 78 So. 229; Wilkins v. Reliance Equipment Co., 259 Ala. 348, 67 So.2d 16.
Code 1940, Tit. 7, § 164; Tuscaloosa County v. Shamblin, supra. A jury demand in equity and a trial at law of an issue out of the equity proceeding are a part of the equity proceedings. Ex parte King, 230 Ala. 529, 162 So. 275; Johnston v. Hainesworth's Heirs, 6 Ala. 443; 2 Anderson Decl.Judg. § 374. Mitchell Poellnitz, Florence, for respondent.
Ex parte Bozeman, 213 Ala. 223, 104 So. 402; Ewart v. Cunningham, 219 Ala. 399, 122 So. 359; Ex parte Haisten, 227 Ala. 183, 149 So. 213. The power remained in the court rendering the default judgment to set it aside at any time before the writ of inquiry was executed, the amount of damages ascertained and a final judgment rendered, even though the thirty day period had expired after the default was entered. Ex parte Bozeman, supra; Ex parte King, 230 Ala. 529, 162 So. 275; Scott v. Leigeber, 245 Ala. 583(2), 18 So.2d 275; 31 Am.Jur. 275, section 728; 49 C.J.S., Judgments, § 333, page 608, note 41. The defendant made no such motion. We think in view of that situation, the bill is not sufficient to establish a right to set aside the default judgment.