LOCKHART vs. WYATT

LOCKHART vs. WYATT. [motion fob new tbiad afteb finad judgment.] 1. When appeal does not lie. — An appeal does not lie from the action of circuit court on a motion for a new trial, under the provisions of the act, approved February 11th, 1867. — (Bev. Code, § 2827.) Appeal from the Circuit Court of Perry. Tried before the Hon. R. W. Cobb, as special judge, appointed under the provisions of section 758 Revised . Code) in consequence of the incompetency of the Hon. John Moobe to preside. This was an application on behalf of the appellant for a new trial, and was made at the fall term, 1867, of the circuit court of Perry, under the acts of the legislature,’ 11th February, 1867, and 18th February, 1867. — Pamphlet Acts, 392, 568 ; Rev. Code, § 2827. Wyatt, the appellee^ instituted suit against the appellant, in said circuit court, on the 4th April, 1861, and at the fall term, 1862, recovered a judgment by default against him, for a large amount. At the fall term, 1867, of said court, the appellant made an application for a new trial in said cause, on the ground that he had a good and meritorious defense, and that his failure to make defense was not owing to any fault on his part, which was supported by his affidavits. The appellee appeared and contested said motion, and the court overrulecl said motion, and refused to grant a new trial. From this ruling, the appellant appealed to this court and assigned the same as error. John F. Yary, for appellant. P. B. Lawson, contra. [MAJORITY — BYRD, J.] BYRD, J. The appeal in this case must be dismissed upon the authority of the case of Ketchum & Wife v. Dennis & Wife, in manuscript, filed at the June term, 1867. The language of the ordinance and the acts of 1867, (Pamphlet Acts, 892, 568) is almost identical. So nearly, that we can make no. distinction as to the right of an appeal from the ruling of the court below, upon an application for a new trial. Let the appeal be dismissed at the cost of appellant.