Matthews v. Matthews, 247 Ala. 472, 25 So.2d 259; Hawkins v. Snellings, 255 Ala. 659, 53 So.2d 552; Chandler v. Home Loan Co., 211 Ala. 80, 99 So. 723; Chapman v. York, 212 Ala. 540, 103 So. 567; Braley v. Spragins, 221 Ala. 150, 128 So. 149; Amann v. Burke, 237 Ala. 380, 186 So. 769. An equity decree which directs further proceedings under direction of the court is interlocutory and the cause remains in fieri. Ex parte Sparks, 254 Ala. 595, 49 So.2d 296; Newton v. Ware, 271 Ala. 444, 124 So.2d 664; Sawyer v. Edwards, 200 Ala. 26, 75 So. 338; Carter v. Mitchell, 225 Ala. 287, 142 So. 514. LIVINGSTON, Chief Justice.
Curtis, Maddox MacLaurin, Jasper, and John T. Batten, Birmingham, for appellant. Unless the jurisdiction of the Court is invoked by a bill of review or by bill in nature of bill of review, the court cannot alter a final decree other than by correcting clerical errors therein, after the lapse of thirty days from the date of its rendition, except where an application for rehearing has been duly filed and has not been ruled upon. Equity Rule 65; Code 1940, Tit. 7, App.; Ex parte Myers, 246 Ala. 460, 21 So.2d 113; Sisson v. Leonard, 243 Ala. 546, 11 So.2d 144; Taunton v. Trammell, 254 Ala. 252, 48 So.2d 190. The court was without jurisdiction to render the decree made and entered October 24, 1957, affecting matters settled in decree of August 27, 1957. Sawyer v. Edwards, 200 Ala. 26, 75 So. 338; Hale v. Hale, 201 Ala. 28, 75 So. 150; Ex parte Green, 221 Ala. 298, 129 So. 72; Carter v. Mitchell, 225 Ala. 287, 142 So. 514; Ex parte Campbell, 229 Ala. 422, 157 So. 675; Sellers v. Manasco, 247 Ala. 445, 25 So.2d 21; Evett v. Mitchell, 251 Ala. 22, 36 So.2d 98. Joel Robinson, Jasper, for appellees.
Though the first decree purported to settle all of the equities presented by the averments of the bill, leaving nothing open for future consideration, 30 days not having elapsed from its rendition, the matter was within the keeping and power of the court to set aside and vacate the final decree, and enter another decree granting relief within the issues presented by the bill. Sawyer et al. v. Edwards et al., 200 Ala. 26, 75 So. 338. We are of opinion, however, that the court committed error in setting aside the decree of August 29th, and entering the substituted decree, without notice to the respondent, after it had appeared and moved for a rehearing.
Code 1923, § 11. The decree of August 6, 1924, confirming the report of the register, was in every sense final. The petition was filed June 30, 1925. Sawyer v. Edwards, 200 Ala. 26, 75 So. 338; 21 C. J. 822. BOULDIN, J.
The return of the sheriff was not sufficient to authorize a decree pro confesso against the corporation. Acts 1915, p. 607; 200 Ala. 26, 75 So. 338; 202 Ala. 653, 81 So. 609; 17 Ala. App. 66, 81 So. 844; 187 Ala. 56, 65 So. 807. The notice was not sufficient to authorize a decree pro confesso on the amended bill. Acts 1915, p. 705. White Watts, of Huntsville, for appellee.
While Equity Rule 65, and Section 119, Title 13, Code of Alabama 1940, provide that a court loses power over a decree after the lapse of thirty days in the absence of any application for rehearing, such provisions apply to final decrees and not to interlocutory decrees. Carter v. Mitchell, 225 Ala. 287, 142 So. 514; Sawyer v. Edwards, 200 Ala. 26, 75 So. 338. In Sawyer v. Edwards, supra, it was stated:
27B C.J.S. Divorce § 319(5); Cowen v. Cowen, 259 Ala. 37, 65 So.2d 196. Courts of equity have wide latitude to make such orders as they deem should be made to meet the plain requirements of justice, and so long as the ultimate relief remains in the keeping of the court. Sawyer v. Edwards, 200 Ala. 26, 75 So. 338; Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939. In a divorce suit, allowance to wife varies from one-half of husband's estate to one-third or less, depending on various qualifying circumstances.
The decree based on evidence ore tenus should not be disturbed. Carlisle v. Blackmon, 257 Ala. 599, 60 So.2d 332. Rendition of supplemental decree did not divest prior decree of its finality. Horn v. Dunn Bros., 262 Ala. 404, 79 So.2d 11. Rehearing in equity rests in sound discretion of trial court, irrevisable on appeal. Ex parte Upchurch, 215 Ala. 610, 112 So. 202; Smith v. Bank of Blountsville, 262 Ala. 65, 77 So.2d 357. The 30 days not having expired, the matter was within the power of the court to vacate the final decree and enter another decree granting relief within the issues of the bill and cross-bill. Sawyer v. Edwards, 200 Ala. 26, 75 So. 338; Jackson Realty Co. v. Yeatman, 219 Ala. 3, 121 So. 415. It is not error for the court to proceed to a hearing on the original bill where respondent has not taken needed steps to get the cross-bill at issue. Thomas v. Skeggs, 223 Ala. 598, 137 So. 443. By the final decree the court determined the equities of the parties.
So far as the interlocutory order of May 4, 1944, is concerned, the court lost no jurisdiction over this order for the sufficient reason that the order is interlocutory and as to the aspect of the case with which it deals the cause is "yet in fieri." Sawyer v. Edwards, 200 Ala. 26, 75 So. 338. There is no point, however, in dealing with the right to require the court by mandamus to expunge the interlocutory order since the final decree cannot be affected and to expunge the interlocutory order would deprive the attorney of what may be a substantial right under the order. The interlocutory order has done the attorney no injury. Ex parte Watters et al., 180 Ala. 523, 61 So. 904.
Wm. F. Thetford, Jr., of Montgomery, for petitioner. The Act of March 17, 1915, now section 6636 of the Code, was dealing with final decrees in the sense that they finally and conclusively determine all matters in controversy, disposing entirely of the cause, leaving nothing further for the court to do. Sawyer v. Edwards, 200 Ala. 26, 75 So. 338. Prior to approval of said act the rule was that, until adjournment of the term, the decree remained in fieri, but after adjournment was not subject to alteration. Owen v. Bankhead, 82 Ala. 399, 3 So. 97; Marshall v. McPhillips, 79 Ala. 145. A decree that, unless complainant perform a given act in a given time, his bill shall stand dismissed, is not a final decree; it requires a further judicial ascertainment that the act required was not performed. Lide v. Park, 132 Ala. 222, 31 So. 360; Ex parte McLendon, 33 Ala. 276; Copeland v. Keller, 221 Ala. 533, 129 So. 571; Ex parte Bradshaw, 174 Ala. 243, 57 So. 16; 5 Ency. Pl. Pr. 952; 21 C. J. 668. The court retains control over the time of execution of a decree, even though the decree be final and the term of court be adjourned. 5 Ency. Pl. Pr. 1057.