Brintle v. Wood , 223 Ala. 472 ( 1931 )

The complainants on the filing of their bill to quiet title requested a trial by jury, as they had a right to do under the statute. Code of 1923, § 9908.

In pursuance of this request, the judge presiding in the equity division ordered a special jury to be summoned, impaneled, and organized, as authorized by section 6631 of the Code, and the issues presented by the pleadings were submitted to the jury, resulting in a verdict in favor of the complainants.

The jury trial was had, and the verdict rendered on November 15, 1929. Thereafter on March 20, 1930, no motion being made to set the verdict aside and grant a new trial, the judge of the equity division entered a final decree on the verdict, granting complainants relief as prayed in the bill.

On April 18, 1930, the appellees filed a petition for rehearing, which was continued until May 3, 1930, when it was argued and submitted and taken under advisement, and in September following was denied.

It is settled by the decisions here, that, in order to review the findings of the jury on the facts culminating in the verdict by the judge sitting in equity, motion must be made before a final decree is entered on the verdict. Karter v. East, 218 Ala. 537, 119 So. 662; Karter v. East, 220 Ala. 511,125 So. 655; Hale et al. v. Cox, 222 Ala. 136, 131 So. 233,235.

The ruling of the court of equity on petition for rehearing filed after the final decree is entered is not reviewable on appeal. Ex parte Upchurch, 215 Ala. 610, 112 So. 202; Engle v. Bronaugh, 208 Ala. 162, 93 So. 868.

The application for rehearing is therefore granted, the judgment reversing and rendering the case is set aside, and the decree of the circuit court, in equity, is affirmed.

Affirmed.

ANDERSON, C. J., and GARDNER, BOULDIN, BROWN, and FOSTER, JJ., concur.

SAYRE and THOMAS, JJ., dissent.