22, 1836, and fixing as the boundary of her property, on the Neron street side, the line between said lot 4 and lot 3, as per said plat. It is further decreed that the claims of both plaintiff and defendant for damages be rejected. It is further decreed that this case be remanded to the district court for further inquiry into, and adjudication upon, the question of the location of the fence erected by defendant on, or in the vicinity of, the line between said lot 3 and lot 4. It is further

decreed that plaintiff pay the costs of this appeal, and that the costs of the district court await the ultimate decision of that tribunal upon the question for the decision of

which the case is remanded.

On Plaintiff's Application for Rehearing. In the opinion heretofore handed down in this case, it is said:

"The property purchased by De Young (plaintiff's author in title) was separated from Tenth street by lot 1, which was represented and sold as having 30 feet front on Madison street; and, if lot 1 were still there, the side line of plaintiff's lot 2 would still be 30 feet from the line of the street, and that is the way in which it is represented on Pilie's plat. But we have found that lot 1 has been thrown into and made part of the street, from which it follows that the lot now bordering on the street is that designated as lot 2 on the Rothaas plat, so that the Pilie plat, in representing lot 2 as still separated from the street by a lot (to which no number is given) 30 feet wide, is incorrect in that it places the side line of lot 2 30 feet further away from the original line of the street than it was when the survey was made, although neither line has changed its position nor could have done SO since that event. In any case, plaintiff is now and as between her and the defendant entitled to a frontage of 90 feet on Dante street, beginning at the present corner of Claiborne avenue and running in the direction of Neron street to the line separating lot 3 from lot 4, as shown by both the Rothaas and Pilie plats of survey."

*

And the decree rejects plaintiff's claim "to any part of lot 4, as delineated on the plat * * by Rothaas," and fixes "as the boundary of her property, on the Neron street side, the line between said lots 4 and 3, as per said plat," etc.

It is ordered, adjudged, and decreed that the judgment appealed from be amended by striking therefrom so much as awards the plaintiff the sum of $300, with interest, and, as amended, affirmed; plaintiff to pay the costs of the appeal. It is further ordered that the usual delay be allowed to both litigants within which to apply for rehearing.

On Defendant's Application for Rehearing.

PER CURIAM. Defendant has filed an

application for further amendment in which she alleges that, by affirming in part the judgment of the district court, we have, in a measure, approved the "Pilie plat," which our opinion holds to be incorrect. In order, therefore, to avoid possible confusion, we hereby set aside our last decree and recast the same as follows:

It is ordered, adjudged, and decreed that the judgment appealed from be set aside, and that there now be judgment in favor of the plaintiff, Miss Sarah Beatty, recognizing her as the owner of the property measuring 90 feet on Dante street, beginning at the corner of Claiborne avenue (formerly Mobile street) and running in the direction of Neron (or Napoleon street), by 117 feet, 6 inches, in depth, and recognizing the defendant, Miss Adele Burke, to be the owner of the balance of the property in said square (bounded by Dante, Neron [or Napoleon], and Dublin streets, and Claiborne avenue [or Mobile street] fronting on Dante street, to the corner of Neron street). It is further decreed that the case be remanded in order that the line between the property of the plaintiff and the defendant may be determined in accordance with the views expressed in the opinion herein filed. It is further decreed that the claims of both plaintiff and defendant for damages be rejected; that the costs of the appeal be paid by plaintiff; and that the costs of the district court await the decision of that tribunal upon the ques

tion for the decision of which the case is remanded.

Rehearing refused.

refused.

In amending, on May 12th, the decree handed down on March 31st, and refusing the rehearing, this court said.

It is evident that the conclusion reached was that "plaintiff is now and as between On Plaintiff's Application for Rehearing. her and the defendant entitled to a frontage of 90 feet on Dante street, beginning at the MONROE, J. Plaintiff's application for present corner of Claiborne avenue and run-rehearing, to which our special attention has ning in the direction of Neron street," and been called, has been duly considered and is that the subsequent language of the opinion and of the decree fixing the line on the Neron street side as between lots 4 and 3, "as shown by both the Rothaas and Pilie plats," was mere inadvertence, since the present corner of Claiborne avenue is formed by the lot 2 originally purchased by plaintiff's author from Philip Harty (lot 1 having been found to have been taken into the street), and 90 feet in the direction of Neron street carries plaintiff's property (lots 2, 3, and 4) to the line between lots 4 and 5, as per the Rothaas plat. It is therefore ordered that the decree heretofore handed down be recast and

"Plaintiff appears to be satisfied with the amended decree handed down on March 31st."

And it then proceeded to amend the decree referred to, with reference to defendant's application for rehearing, which alone had attracted its attention, and which alone was refused. It now appears that plaintiff had also filed such an application, which was overlooked by the court, but which has since been called to its attention, and duly considered.

MEMORANDUM DECISIONS.

ANTIONETTE COAL CO. et al. v. GAY-
DSA COAL CO. (Supreme Court of Alabama.
April 23, 1913.) Appeal from Circuit Court,
Walker County; J. J. Curtis, Judge.
PER CURIAM. Appeal dismissed.

BATES v. TARTT. (Supreme Court of Alabama. May 1, 1913.) Appeal from Chancery Court, Sumter County; Thomas H. Smith, Chancellor. Harsh, Beddow & Fitts, of Birmingham, for appellant. J. A. Mitchell and A. G. & E. D. Smith, all of Birmingham, for appellee.

PER CURIAM. Appeal dismissed by agreement of parties.

Walter Jones was convicted of an offense, and he appeals. Affirmed. A. L. Arnold, of Birmingham, for appellant. R. C. Brickell, Atty. Gen., W. L. Martin, Asst. Atty. Gen., and Borden Burr, of Birmingham, for the State.

MAYFIELD, J. There is no bill of exceptions in this case, and there are no errors in the record proper; hence the judgment of the trial court must be affirmed. Affirmed. All the Justices concur.

Ex parte LETCHER. (Supreme Court of Alabama. Feb. 8, 1913.) Original petition by Julian C. Letcher for a writ of mandamus, directed to L. D. Gardner, Chancellor of the Southeastern Chancery Division. Writ denied. O. S. Lewis, of Tuskegee, for petitioner. Walton H. Hill, of Montgomery, and Merritt & Riley, of Tuskegee, for respondent.

BIRMINGHAM RY., LIGHT & POWER CO. SAXON. (Supreme Court of Alabama. PER CURIAM. Petition for mandamus to April 23, 1913.) Appeal from Circuit Court, Hon. L. D. Gardner, chancellor of the SouthJefferson County; E. C. Crowe, Judge. Till-eastern chancery division, to require him to man, Bradley & Morrow, of Birmingham, for vacate and annul a decree entered in the cause appellant. Denson & Denson, of Birmingham, of Letcher v. Letcher. It is the opinion of for appellee. the court that petitioner is not entitled to mandámus.

PER CURIAM. Dismissed by agreement of parties. See, also, 59 South. 584.

CAMPBELL v. STATE. (Supreme Court of Alabama. April 10, 1913.) Appeal from Circuit Court, St. Clair County; J. E. Blackwood, Judge. John W. Inzer, of Ashville, and Inzer & Inzer, of Gadsden, for appellant. R. C. Brickell, Atty. Gen., and W. L Martin, Asst. Atty. Gen., for the State.

SAYRE, J. There is no error in the admission of evidence or in refusal of the charges requested by the defendant.

DOWDELL, C. J., not sitting.

CONTINENTAL INS. CO. OF NEW YORK et al. v. EUREKA STOVE WORKS. (Supreme Court of Alabama. Feb. 6, 1913.) Appeal from City Court of Birmingham; H. A. Sharpe, Judge. John T. Glover, of Birmingham, for appellant. Sterling A. Wood and Clement R. Wood, both of Birmingham, for appellee.

PER CURIAM. Dismissed by agreement.

Ex parte HAUSER. (Supreme Court of Alabama. April 17, 1913.) Certiorari to Court of Appeals. Webb & McAlpine, of Mobile, for applicant.

PER CURIAM. Application for certiorari to Court of Appeals denied.

JAGGER CREEK FUEL CO. v. ALLISON. (Supreme Court of Alabama. April 23, 1913. Rehearing Denied May 1, 1913.) Appeal from Circuit Court, Walker County; J. J. Curtis, Judge. Bankhead & Bankhead, of Jasper, for appellant. James J. Ray, of Jasper, for appellee.

Ex parte MOBILE & O. R. CO. (Supreme Court of Alabama. April 10, 1913.) Petition for writ of certiorari to the Court of Appeals, to require that court to certify to the Supreme Court for review and determination the case of Thomas B. Minor v. Mobile & Ohio Railroad Company (60 South. 951). Denied. Steiner, Crum & Weil, of Montgomery, and Logan & Logan of Centerville, for petitioner. T. A. Curry, of Clanton, for respondent.

MCCLELLAN, J. Upon full consideration, the writ prayed is denied. Certiorari denied. All the Justices concur, except DOWDELL, C. J., not sitting.

MORRIS v. STATE. (Supreme Court of Alabama. Feb. 6, 1913.) Appeal from Circuit Court, Colbert County; C. P. Almon, Judge. R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PER CURIAM. Appeal dismissed, because appellant had escaped.

NORDENBERG v. HOLSTEIN. (Supreme Court of Alabama. April 23, 1913.) Appeal from Chancery Court, Cullman County; W. H. Simpson, Chancellor. J. B. Brown, of Cullman, for appellee.

PER CURIAM. Dismissed for want of prosecution.

Ex parte PANTAZE. (Supreme Court of Alabama. April 17, 1913.) A. Latady, of Birmingham, for petitioner. Harsh, Beddow & Fitts, of Birmingham, for respondent. PER CURIAM. Petition is denied, on the authority of Ex parte State, 61 South. 53, Ex PER CURIAM. Dismissed by agreement of parte Steverson, 58 South. 992, and Williams parties. v. L. & N. R. R. Co., 58 South. 315.

JONES v. STATE. (Supreme Court of Alabama. Feb. 13, 1913.) Appeal from Criminal

Ex parte POWELL. (Supreme Court of Alabama. April 10, 1913.) Petition by Mark

END OF CASES IN VOL. 61