42 Ala. 645 | Ala. | 1868
That act authorizes an appeal, upon the consent of the opposite party, from a decree overruling a motion to dismiss a bill for want of equity.
In this case a demurrer was interposed to the equity of the bill in the answer, which was undisposed of at the time the motion to dismiss for want of equity was made.
But the statute having given an appeal when such a motion is overruled, it, by implication at least, makes the action of the court on such a motion, reviewable by this court, when the party under the rule of court has entitled himself to have his motion passed on by the chancellor.
In this case, having demurred to the bill for want of equity, he had no right under the rule to make the motion, at least before the final hearing, and therefore the chancellor did not err in overruling it, although he did so for another reason. This view is sustained by section 3850 of the Code. For although a demurrer must set forth the ground specially or not be heard, yet on the final hearing the bill may be dismissed for want of equity. —5 Porter 554.
As such action is now made reviewable, it will become a matter of some interest to lay down a rule which will govern this court in revising that action upon a question which has heretofore been exclusively one of discretion, before the final hearing.
It would seem that this court should never reverse the action of the court below in overruling such a motion before final decree, except in a case where it is clear that the bill cannot be amended so as to relieve it from objection.
And in this case we do not perceive that the ruling of the chancellor is obnoxious to the rule indicated. We say indicated, because we do not intend to declare what should be the rule, as it is unnecessary to do so at this time, but prefer to leave the question an open one. We affirm the ruling of the chancellor on the point first stated on this branch of the case.
Affirmed.