Opinion
1 Div. 808.
June 29, 1929.
Appeal from Circuit Court, Washington County; T. J. Bedsole, Judge.
Action on a policy of fire insurance by Mrs. M. R. Johnson against the National Union Fire Insurance Company of Pittsburg, Pa. From an order granting defendant's motion to set aside judgment nil dicit, plaintiff appeals. Appeal dismissed.
Joe M. Pelham, Jr., of Chatom, for appellant.
In view of the decision, it is not necessary that brief be here set out.
Coleman, Coleman, Spain Stewart, of Birmingham, for appellee.
The order setting aside the nil dicit judgment is not one from which an appeal lies. Ex parte Gay, 213 Ala. 5, 104 So. 898; Brown v. Brown, 213 Ala. 339, 105 So. 171; Carroll v. Vaughan, 48 Ala. 352; Ex parte North, 49 Ala. 385; Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304; Ex parte Kay, 215 Ala. 569, 112 So. 147; Ex parte Jackson, 212 Ala. 496, 103 So. 558.
The appellant (plaintiff in the court below) brought suit on a policy of insurance. Demurrer was filed to the complaint. At the time the cause was called for trial, the defendant being called came not, but made default. Judgment was entered nil dicit. Subsequently during the same term of the court the defendant filed its motion for a new trial under sections 9518 and 9521 of the Code of 1923. The trial court entered an order granting the motion and restoring the cause to the docket. From this order plaintiff prosecutes this appeal. Motion is here made to dismiss the appeal.
As we see it, the question is settled by the decision in Ex parte Gay, 213 Ala. 5, 104 So. 898, in which it is held that this court has no jurisdiction to entertain an appeal in cases of this character. If the appellant has a remedy, it is by mandamus.
Appeal dismissed.