Beall v. Lehman, Durr Co., 128 Ala. 165

Beall v. Lehman, Durr Co.

128 Ala. 165 | Ala. | 1900

TYSON, J.

The bill in this cause was filed to subject certain real estate therein described to the satisfaction of a note given for.the purchase of-the same. It is alleged that this note was transferred and held by the complainant as collateral security for an indebtedness due to it by Beall & Coston and J. W. Beall: The object sought ito he accomplished is to recover the sum or sums of money alleged to be due by these parties to the complainant for which ¡the note was hypothecated. One of the issues presented by the pleadings is whether there is any sum due by Beiall & ‘Coston or J. W. Beall to these complainants. Indeed indebtedness vel non, is one of the vital questions involved in determining the equities — the merits of the case. Unless the complainant is the owner .of. an enforceable debt — unless there is some amount due to it for which the note ivas pledged as collateral security — it‘ follows, as a matter of course, that it would not be entitled to a decree condemning the lands. The decree from which the appeal is prosecuted fails to ascertain and adjudge'that the *167respondents Beall & Coston or J. W. Beall are indebted to the complainant in any sum whatever. This question is undetermined, but is referred to the register, and he is directed to “hold a reference and ascertain and report the amount due to complainant by Beall & Coston, if any; and, secondly, the amount due complainant by J. W. Beal as an individual, on the 1st day of June, 1894, with interest thereon.” This infirmity prevents the decree from being a final one. — Walker v. Crawford, 70 Ala. 567; Kimbrell v. Rogers, 90 Ala. 339; Savage et al. v. Johnson, 125 Ala. 673; Garner v. Prewitt, 32 Ala. 18. It is, therefore, merely interlocutory. But it is not such an interlocutory decree from which an appeal will lie. — Code, § 427. The decree, not being final and not being such an interlocutory one, as will support an appeal, this court is without jurisdiction to review it. Code, § 426, and authorities cited under it.

Appeal dismissed.