104 So. 786 | Ala. | 1925
This is a bill in equity to set aside a conveyance on the ground of *318
fraud, filed by T. R. Berry against J. B. and N.J. Burrow. On the previous appeal (
When application is made to amend the answer after submission of the cause, at the hearing, and before final decree, so as to set up any matter of defense, it may be filed as a matter of right; but the court shall impose such terms upon the party amending at the hearing, not extending beyond the payment of all the costs as may be fair and equitable. Gen. Acts 1915, p. 705, § 1; Burrow v. Berry,
When the cause was reversed, this order was entered by the trial court on June 16, 1924:
"This cause coming on to be heard at this term of the court, the respondent is given leave to file amended answer, and the respondent is taxed with the cost of the case to date, and, when the respondent pays the cost of the case, the register will file respondent's amended answer."
On July 9, 1924, the respondents filed a motion which states:
"Now comes the respondents in the above-styled cause and moves the court to set aside an order or decree in the above cause, made and entered on June 16, 1924, taxing the respondents with the cost in the case to date of the order or decree, and for grounds of said motion sets down and assigns the following."
The respondents in this motion seek by its prayer the following relief:
"Wherefore respondents pray that this court will set aside the above order or decree taxing all the cost in the case against the respondents, and cause an order or decree to be entered taxing the respondents with only such cost as had accumulated before and up to filing of the amended answer before final decree and not beyond the rendition of the final decree."
On March 10, 1925, the court entered a decree on this motion, which reads as follows:
"This cause, coming on to be heard in term time, was submitted for decree upon the motion of the respondents to amend the decree heretofore entered in this cause on June 16, 1924, and, upon a consideration of the same by the court, the court is of the opinion that said motion is not well taken. It is therefore ordered, adjudged, and decreed by the court that said motion be, and the same hereby is, overruled."
This appeal is prosecuted by respondents from this decree rendered March 10, 1925, and complainant, appellee, moves to dismiss the appeal, because this decree was not such a final decree nor such an interlocutory decree as will support an appeal; that no appeal lies from this decree by statute.
An appeal lies from a judgment or order refusing or granting a motion to re-tax costs. Section 3684, Code 1907, as amended Gen. Acts 1911, p. 90. However, this is not a motion to retax costs. A motion to retax costs must under the statute set forth the particulars in which the clerk has erred. Section 3684, Code 1907, as amended Gen. Acts 1911, p. 90; Elliott v. Howison,
The respondents by this motion do not seek to retax cost improperly taxed by the register under this order of the court, but seek to have the order of the court dated June 16, 1924, set aside, which directs all costs in the case to date to be paid by respondents, and to have a different order entered by the court, or to amend the order or decree of that date. The trial court correctly so interpreted the motion. This order and decree of the court, dated March 10, 1925, overruling this motion, is interlocutory in its nature and character, and we are cited to, and find no statute authorizing an appeal from it to this court. Sections 6078, 6079, and 6089, Code 1923; McLaughlin v. Beyers,
In the absence of a statute authorizing it, no appeal will lie to this court from this order and decree overruling this motion; without authority by statute this court cannot take jurisdiction of it, and the motion of appellee to dismiss this appeal must be and is granted. Worthington v. Morris,
The appeal is dismissed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. *319
