
    AMERICAN BREWING COMPANY, a corporation, v. ALBERT LISK.
    5 So. (2nd) 856
    Special Division A
    January 16, 1942
    Rehearing Denied February 19, 1942
    McKay, Dixon & DeJarnette, for plaintiff in error.
    Kearley & White, John S. Leach and Francis D. Guinan, for defendant in error.
   BUFORD, J.:

On writ of error it is contended that the court below .committed reversible error in- denying motion to vacate and set aside default and to stay execution. The contention is that the motion was timely presented and should have been granted.

The order complained of, as shown by the record, is:

“This cause was duly presented by counsel for the parties and considered by the Court.
“Thereupon, It Is Ordered and Adjudged that the defendant’s Motion to Open Default, Set Aside Purported Verdict and Judgment, and for Stay of Execution, be denied.
“Done and Ordered this June 6, A. D. 1941.
“C. E. Chillingworth,
“Circuit Judge.”

So it appears that the court below duly considered the motion as presented and made its order thereon.

If the court had concluded that the motion was filed too late to be considered, the proper order would have .been to strike the motion for that reason.

So the question as to whether the motion was timely filed is not presented in the record.

The showing made in the record does not warrant us in holding that the circuit court abused its judicial discretion in denying the motion supra.

It is also contended that the judgment is invalid because the allegations of the declaration were insufficient to state a cause of action.

The declaration as exhibited in the transcript has been examined and we find that it does not .entirely fail to state a cause of action. See Peery v. Mershon, et al., filed at this Term of the Court.

No reversible error appearing from the entire record, the judgment is affirmed.

So ordered.

BROWN, C. J., TERRELL and ADAMS, JJ., concur.  