Barclay v. Spragins

Dec 15, 1885

Versions:80 Ala. 357

SOMERVILLE, J.

The appeal in this cause is taken from an interlocutory decree of the chancellor sustaining a demurrer to a cross-bill, without any order of dismissal or other disposition of it.

Such a decree is manifestly interlocutory and not final, and no appeal from it will lie to this court, unless it can be sustained as coming within the influence of section 3918 of the present Code. In Parish's Adm'r v. Galloway, 34 Ala. 163, it was held that an appeal would not lie from a decree dismissing a cross-bill and continuing the original cause, because such a decree is not final. The case of Brooks v. Woods, 40 Ala. 538, where such an appeal was sustained, on the ground that the appellee had joined in the assignment of error, was decided without proper consideration, and can not be sustained.' The question is jurisdictional, and consent can not confer jurisdiction on the subject-matter, in matters appellate, any more than in those original.

*359There are but three classes of interlocutory decrees from which appeals are now authorized to be taken under section 3918 of the Code of 1876 : (1.) Decrees sustaining or overruling a demurrer to a bill in equity. (2.) Decrees sustaining or overruling a plea to such bill. (3.) Decrees sustaining or overruling a motion to dismiss such bill for want of equity. Code, §§ 3918, 3916.

A cross-bill, in our opinion, is not “ a bill in equity ” within the meaning of the statute. The reference is very clearly to original bills. The purpose of the statute is to facilitate the speedy decision of chancery causes, and to diminish the costs of litigation, a large portion of which accrues from.the taking of testimony.— Winn v. Dillard, 60 Ala. 369; Hightower v. Kennedy, 11 Ala. 362. It is not intended unnecessarily to multiply appeals, nor would the most liberal view of it authorize a construction which would split up a chancery cause and adjudicate its equities by piece-meal. Hence the nature of the interlocutory decrees from which appeals are authorized. They go to the merits of the whole cause, and not a mere fractional part of it. If the hill states the true case, as must be presumed on demurrer or motion to dismiss for want of equity, an interlocutory ruling may result in ending the litigation, in the absence of any amendment made or proposed by the party losing. So with a ruling on the sufficiency of a plea, which is tested by demurrer.

These reasons have no application to a cross-bill, which often is only a mode of defense to the original bill, and the fate of which is not necessarily decisive of the main suit. “It may fail for want of necessary averments, or defect of proof, and still the complainant in the original bill may obtain no relief for want of equity in his bill, or for a like defect of proof.” Parish v. Galloway, 34 Ala. 163, supra.

We are of opinion that an appeal from a decree sustaining a demurrer to a cross-bill is not authorized by section 3918 of the Code. The ease of Winn v. Dillard, 57 Ala. 167, holding a contrary view, is hereby overruled. We have no jurisdiction of the appeal, and must ex mero motu dismiss it.