
    CALLAHAN vs. LOTT, Administratrix.
    [APPLICATION BOB EEHEAEING,]
    1. When appeal will not lie. — An appeal will not lie from the order of the circuit judge, granting a rehearing in the court below.
    2. Rehearing, petition for. — To obtain a rehearing under the provisions of §§ 2814, (2408,) 2815, (2409,) Revised Code, the petition should set forth all the facts relied upon, to obtain the relief sought; the affidavits of third persons, though they may be looked to for other purposes, cannot be considered as parts of the petition.
    Appeal from the Circuit Court of Monroe.
    Heard before Hon. John K. Henry.
    This was an application, by petition, by E. B. Lott, administratrix, to the judge of the circuit court for Monroe county, for a new trial, in the case of R. N. Callahan vs. E. B. Lott, administratrix, <fcc., in which judgment was rendered against the defendant, at the-fall term, 1866, of said court. The petition was filed on the 14th December, 1866. Upon hearing the petition, demurrer .and answer thereto, the judge granted a new trial. From this action of the court, the plaintiff appealed, and now assigns the same as error.
    S. J. Cummings, for appellants.
    R. C. Torrey, contra.
   JUDGE, J.

There has been no trial in the circuit court, of the facts alleged in the petition in this case, and the order of the circuit judge, made in vacation, superseding the execution, and directing the cause to be placed upon the trial docket, will not support an appeal. The correct practice in such cases, is plainly indicated in the case of Pratt & McKenzie v. Keils & Sylvester, 28 Ala. 390.

We may remark, for the future guidance of the parlies in the court below, that the petition does not seem fully to conform to the requisitions of section 2408, and 2409, of the Code. All the facts relied upon to obtain the relief sought, should be set forth in the petition of the applicants; the affidavits of third persons, though they may be looked to for other purposes, cannot be considered as parts of the petition. The petition, however, may be amended in the court below.

Appeal dismissed.  