
    Seymour v. Farquhar & Son.
    
      Application for JRehearing after Judgment at Law.
    
    1. Rehearing at law after final judgment; amendment of petition, and substitution of lost papers. — A judgment of the appellate court, on application for mandamus, vacating and annulling an order granting a supersedeas and rehearing after final judgment, or requiring the lower court to vacate and annul it, because it was rendered in vacation, leaves the petition itself still pending 'and unaffected; and it is. the duty of the lower court to proceed with it, hearing demurrers, allowing proper amendments, substitution of lost papers, &c., as in other cases.
    Appeal from the Circuit Court of Fayette.
    Tried before the Hon. SaM. H. Speott.
    JohN B. SaNFORd, and A. B. MoEachiN, for appellants.
    MoGuiee & Coletee, contra.
    
   COLEMAN, J.

Farquhar & Son recovered a judgment in trover against appellants. Under sections 2872 and 2873 of the Code, the defendants applied for a rehearing. In vacation, .tbe judge presiding granted a rebearing in accordance witb tbe petition, and directed tbe clerk to issue a super sedeas, or restraining order, to restrain tbe collection of tbe execution issued upon tbe judgment. Upon application to tbis court, tbe order of tbe judge granting a rehearing in tbe cause, and ordering a supersedeas or restraining order, was beld to have.been improperly made in vacation, and that tbe facts averred in tbe petition should have been beard and tried at tbe next term of tbe court, as provided in section 2876 of tbe Code. At tbe following term of tbe Circuit Court of Payette county, in wbicli tbe judgment had been recovered, tbe petitioners for a rehearing moved tbe court for leave to amend tbe petition as set out in tbe proT posed amendment, and also.for leave to substitute certain papers wbicli, according- to tbe averments of tbe motion, were a part of tbe original petitition for a rehearing, and which in transmission to the judge were lost.- Tbe court refused to grant tbe amendment to tbe petition, or to consider tbe evidence offered to show tbe loss' of a part of tbe papers of tbe original petition; bolding that, under tbe order of tbe Supreme Court, tbe trial court bad no discretion or further jurisdiction than to vacate tbe order granting tbe rehearing, and to dismiss tbe petition. Prom tbe action of tbe court refusing to allow tbe amendment and tbe substitution of tbe papers, and from tbe judgment vacating the former order granting a rehearing and dismissing tbe petition, tbe present appeal is-prosecuted.

When tbe. case was here before, the decision of tbis court bad no other scope or effect than to require that tbe order of tbe lower court, granting a rehearing and supersedeas, or restraining order, be annulled and vacated. It left tbe petition pending, to be beard at tbe first subsequent term of tbe trial court, under section 2876 of tbe Code. Tbe statute requires tbe court to allow amendments'of tbe pleadings,’ and it has been long beld that a petition for a rehearing may be amended. — Dothard v. Teague, 40 Ala. 586. The statute provides for tbe substitution of lost or destroyed papers in any pending cause or proceeding, and for tbe notice to be given to tbe adverse party. — Code, §§ 657, 2734. An appeal lies from an order of tbe court .refusing to grant a statutory rehearing after final judgment at law.— O’Neal v. Kelly, 72 Ala. 559; 40 Ala. 586.

It might give certain facts set up in tbe petition and proposed amendments undue weight, if they were specifically pointed out and discussed, in this, opinion. Tbe ruling of the trial court was not in accord with tbe principles herein declared. The court should allow all proper amendments to the petition, pass upon all demurrers, if any, which raise the question of the sufficiency of the petition, or have the issue of fact tried and • determined as it may direct, under section 2876 of the Code.

[Reversed and remanded.  