This is an appeal by the respondents below, Alabama State Board of Optometry and the members of said Board, from a decree of the circuit court of Mobile County, in equity, granting to appellee, complainant below, a temporary injunction restraining respondents from enforcing an order of said Board dealing with complainant's right to practice optometry in this state.
On July 21, 1961, the trial judge, on motion of complainant, continued "the hearing on the application for temporary injunction" until September 1, 1961. On August 10, 1961, the respondents filed a "response to the rule nisi * * * to show cause why a temporary injunction should not be issued against respondents." No rule nisi appears in the record. Respondents probably considered the notice of the hearing to be a rule nisi.
On September 1, 1961, an oral hearing was had before the trial judge.
On September 29, 1961, a decree was rendered granting a temporary injunction against respondents. The respondents bring this appeal from that decree, the appeal having been perfected on October 26, 1961.
We are faced with a threshold question of jurisdiction, that is, whether the appeal was timely taken.
Code 1940, Tit. 7, § 1057, provides as follows:
It has been held that § 1057, and not those sections providing generally for appeals from final and interlocutory decrees and judgments, apply to appeals presented where applications for temporary injunctions have been granted or refused after the applications have been set down for hearing under § 1054, Tit. 7; that the question is a jurisdictional one and that an appeal must be dismissed ex mero motu if not taken within the ten days allowed. Francis v. Scott, 260 Ala. 590, 72 So.2d 93; Dunn v. Ponceler, 235 Ala. 280, 178 So. 47; City of Decatur v. Meadors, 235 Ala. 544, 180 So. 550.
We have no alternative but to dismiss the appeal because it was not taken within the ten days prescribed by § 1057, Tit. 7, supra.
SIMPSON, MERRILL and COLEMAN, JJ., concur.