98 So. 796 | Ala. | 1924
This is a companion case to Bell v. King (6 Div. No. 8)
We have held in the above cause that the decree of July 24th was a final decree which would support an appeal. Hence this court acquired jurisdiction of the cause. During the pendency of that appeal the lower court was without jurisdiction to proceed to the rendition of the decree sought to be reviewed on this appeal.
It is of no moment that no supersedeas bond had been given on the former appeal. A "supersedeas" is to suspend the execution of a decree already rendered, not to suspend proceedings in the pending cause further adjudicating the rights of the parties. Allen v. Allen,
The court below having no jurisdiction to render the decree here appealed from, the decree was void; a void decree will not support an appeal; this court can acquire no jurisdiction on such appeal even by consent of parties; and must take notice of its own want of jurisdiction apparent on the record. The appeal in this cause must therefore be dismissed. Wynn v. Tallapoosa County Bank,
We call attention to what was said by Brickell, C. J., in Jones v. Wilson,
What is said in Ex parte Elyton Land Co., supra, would not apply in all cases.
Where much of the litigation will be had on a reference, as in cases of trusts, copartnerships, and many others, it may appear much the better to settle the equities first, let an appeal be prosecuted thereon, if desired, and save the expense of litigating unnecessary issues in the further progress of the cause. But where the reference is pro forma, or does not involve great expense or delay, it is better to have but one final decree, so that the successful party may have the fruits of his decree, unless protected by supersedeas bond pending an appeal.
Much depends upon the particular case, and the form of decree is within the wise discretion of the court, acting within his jurisdiction.
For the reasons stated, the appeal in this cause is dismissed.
Appeal dismissed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.