In Ex parte Sims, (44 Ala. 248,) it was held that the proper practice to dispose of the new trial, granted at the special term, would have been to apply to this court for a mandamus directing it to be set aside. It was not a final judgment, and was granted under peculiar circumstances, by authority of special legislation, but on insufficient grounds. It was thought that the party was entitled to have his judgment of the date when he rightfully obtained it, if he so desired.

We decide, on the authority of this case, and of Mudd *555v. McElvain, (44 Ala. 48,) that there was error in the refusal of the court to strike this case from the docket, to set aside the order for a new trial made at the special January term, 1869, and in the charge of the court as stated above.

The judgment is reversed, and the cause remanded.