Opinion
6 Div. 460.
May 14, 1918.
Appeal from Circuit Court, Cullman County; O. Kyle, Judge.
Petition by W.J. Mooneyham for writ of prohibition to the county court. After writ was directed to be issued, new trial was ordered, and petitioner appeals. Appeal dismissed.
See, also, 15 Ala. App. 482, 73 So. 990.
J.P. Lockwood, of Cullman, for appellant. A.A. Griffith and Paine Denson, both of Cullman, for appellee.
The record filed here shows that the trial court, on first consideration of the case as presented on the respondent's demurrers to the petition for the writ of prohibition, overruled the demurrers, and, the respondent declining to plead further, the prayer of the petition was granted, and a writ of prohibition directed to issue to the county court, restraining that court from proceeding further with the trial of the appellant.
On a subsequent day of the term, on hearing the respondent's motion for new trial, the following order was entered:
"On this 24th day of October, 1917, come the parties by attorneys, and thereupon, said motion being submitted to the court, and duly considered and understood by the court, it is ordered and adjudged by the court that said motion be and is hereby granted, and the judgment heretofore rendered in this cause is hereby set aside, and held for naught, on authority of Alford v. State ex rel. Atty. General, 170 Ala. 179, 54 So. 213, Ann. Cas. 1912C, 1093. It is further ordered and adjudged by the court that said W.J. Mooneyham be and he hereby is taxed with the costs of this proceeding in this motion as well as in the original case, and that the defendant have and recover of the said W.J. Mooneyham the costs of this motion, as well as in the original case, for which let execution issue."
The statement and prayer for appeal is:
"Relator, W.J. Mooneyham, appeals to the Court of Appeals of Alabama, from the judgment and order of the said circuit court, disallowing and denying the writ of prohibition, mandamus, etc., in his favor, and against Hon. Fred J. Buchmann, judge of the county court of Cullman county, Ala.; and he hereto attaches his bond herein for the costs of the said Court of Appeals."
This statement is sufficient to show that the appeal here is not from the order granting the new trial, and there is no other order or judgment shown by this record that will sustain the appeal. The appeal is therefore dismissed.
Appeal dismissed.