On December 4, 1951, plaintiff filed suit against United States Fidelity & Guaranty Company, a Maryland Corporation, on its surety bond. On March 5, 1952, the Commercial Casualty Insurance Company was added as a party defendant. By a series of pleadings not here pertinent the cause remained in fieri until June 7, 1956, at which time the plaintiff due to the sustaining of the defendants' demurrers to the complaint, took a non-suit and reserved said rulings for the decision of this Court. The defendant United States Fidelity & Guaranty Company filed a motion to set aside the judgment of non-suit on June 23, 1956. A like motion was filed by the other defendant on June 30. The motions were denied by the trial court on July 12, 1956. The appeal taken more than six months from the judgment of non-suit was entered by the plaintiff filing an appeal bond on January 8, 1957.
The appellees have filed a motion to dismiss the appeal on the ground that the same was not taken within the time prescribed by law, i. e., six months from the date of the judgment of non-suit (Title 7, § 788, Ala. Code of 1940). In resistance to the motion to dismiss the appellant contends that the motion of the defendants to set aside the judgment of non-suit tolled the running of the time for appeal. In other words, appellant contends that the
It is well settled that motions for new trials at law and for rehearings in equity toll the time for the taking of an appeal from the main judgment or decree. Local 204 Textile Workers Union of America v. Richardson, 245 Ala. 37, 15 So.2d 578; Williams v. Knight, 233 Ala. 42, 169 So. 871.
But it also seems beyond argument that the motion to set aside a judgment of non-suit is not a motion for a new trial within the meaning of § 764 of Title 7, Ala. Code of 1940. Mobile Light & R. Co. v. Hansen, 135 Ala. 284, 286, 33 So. 664. In this Hansen case it was stated:
This would seem to be dispositive of the issue, but in view of argument of counsel some decisions of this court will be re-examined.
In Altman v. Barrett, 234 Ala. 234, 174 So. 293, 295, pertinent events were as follows:
November 25—decree sustaining demurrers.
December 1—motion to set aside decree of November 25.
December 18—submission on motions.
December 23—motion overruled.
January 7—appeal taken from decree of November 25.
This court held that the appeal was "within due time under sections 6079, 6670, Code, as interpreted in Williams v. Knight, 233 Ala. 42, 169 So. 871." It is apparent that Williams v. Knight was no authority for such a decision unless the motion to set aside the judgment sustaining the demurrers was tantamount to a motion for a rehearing, for the Williams case dealt with a motion for rehearing after final decree on the
The case of Hinson v. Hinson, 253 Ala. 131, 43 So.2d 130, also involved an appeal from a decree sustaining a demurrer to a bill in equity. In that case the decree was rendered on December 8, 1948, and the appeal taken seven months later. The court in holding the appeal should be dismissed for not having been taken in time made the following statement:
Appellant assails the Hinson case as authority for dismissal by contending that the real basis for the decision was that the motion was not filed within thirty days and that the statement to the effect that such a motion did not suspend the running of the time for appeal was therefore dictum. This argument overlooks the very sound principle of stare decisis to the effect that where there are two independent reasons given for a decision, each is a ruling on the case and neither one is to be considered mere dictum. Usher v. Department of Industrial Relations, 261 Ala. 509, 75 So.2d 165.
We cannot interpret Manery v. Manery, 256 Ala. 441, 55 So.2d 194, as an attempt to limit either the principle of Hinson or other cases of like import. It should be noted that Williams v. Knight, 233 Ala. 42, 169 So. 871, where was the sole authority given for the Altman v. Barrett decision was also cited as authority in the Hinson case. We cannot escape the conclusion that Altman v. Barrett and Hinson v. Hinson, are in conflict and in so far as Altman v. Barrett trangresses the principle of Hinson and other like cases, it must be disregarded.
The motion to "set aside" the "final decree" in the case of Garrett v. Oddo, 261 Ala. 172, 73 So.2d 761, was obviously treated and considered as a motion for a rehearing.
Sadler v. Sessions, 261 Ala. 323, 74 So.2d 425, 427, constitutes the latest pronouncement of this Court relating to the instant problem. The significant events in that case were as follows:
June 8—jury verdict and judgment for plaintiff.
June 26—motion for new trial, continued to August 10.
August 10—motion heard and taken under advisement.
August 25—new trial granted on motion.
September 22—plaintiff filed motion to set aside order of August 25.
November 17—above motion taken under advisement (after having been duly continued to date).
December 21—motion to set aside overruled.
March 19—appeal taken from order of August 25.
The court in its opinion stated:
We believe the rule stated in Sadler v. Sessions, supra, is a correct one and that the time for which an appeal can be taken runs from the date of the last appealable order. True, motions for new trials at law and rehearings from final decrees in equity toll the running of the time for appeal, but an order overruling a motion to set aside a non-suit is not appealable. Mobile Light & R. Co. v. Hansen, 135 Ala. 284, 33 So. 664.
We hold, therefore, that the motions to dismiss the appeal are well taken.
LIVINGSTON, C. J., and LAWSON, GOODWYN, MERRILL and COLEMAN, JJ., concur.