The opinion
On Petition to Eei-ieaR.
This case was decided on February 15, 1941, by this court, reversing the case as to the divorce granted the wife, but affirming the Chancellor in his disposition in providing the wife with alimony by decreeing to her the immediate possession of the small tract of land in Anderson County in which the title was in her and her husband by the entirety. The husband has filed a petition to rehear running in the name of the defendants, but only specifying two grounds for a rehearing and a modification of the decree of this .court. They are designated “(a)” and “(b),” and are as follows:
“(a) The court has taken all the property of,the defendant 'William Henry Loy, and awarded the same to the complainant, Mary Etta Loy, as alimony, while the defendant is in bad health and unable to work and support himself, and the complainant, Mary Etta Loy, is able-bodied, in good health, and capable and able of supporting herself;
“(b) Because the court, by its opinion, deprived the defendant Loy of his present interest in real estate, held by himself and his wife as tenants by the entirety.”
*109 The court in its opinion and decree provided that the husband and wife should have equal rights in the small home place and the possession if the husband elected to avail himself of this possession; and the order provided that the Chancery Court will maintain the ease upon the docket that he might protect his right to the property. We think that the disposition of the possession of this property is equitable and just.
The court did not deprive defendant Loy of his present interest in the real estate; he still owns the legal title by the entirety with his wife, and the title was in no way disturbed; only the- right to the possession was disposed of. It is not necessary to decide whether a court of equity can sever the estate held by the entirety, since no attempt was made to do this.
The petition ends with this prayer:
‘ ‘ It is, therefore, most urgently insisted that a rehearing be granted to the defendant, William Henry Loy, and that the award of alimony be set aside, and that his present interest in the Anderson County farm be restored to him.”
There is no relief sought for the co-defendant, John Buhl. The decree was adverse to him, holding that he had no rental contract for the year 1941 and was not entitled to continue his possession. The petition to rehear did not suspend the decree in reference to the defendant John Buhl, pending its disposal. The opinion disposed of the defendant Buhl’s assignment of error and the case as to him became final, unless he asked for a rehearing upon his assignments of error and this he failed to do. We think after the expiration of thirty days from the entry of the decree, the decree as to Buhl was final, and the clerk was within hfs right to issue a procedendo to the Chancery Court in order that the decree may be executed as to Buhl. The motion to recall the procedendo is denied. The petition for a rehearing is denied for the reasons hereinbefore stated.
Ailor and McAmis, JJ., concur.