Johnson v. Southern Building & Loan Ass'n

132 Ala. 173 | Ala. | 1902

McCLELLAN, C. J.

— A demurrer to the bill as amended was incorporated in the answer of the respondent, the Southern Building and Loan Association. The respondent also filed the following motion: “Now comes the respondent, * * * and moves the court to dissolve the injunction heretofore granted, in the above stated cause on the following grounds, viz.: First. There is no equity in the bill as amended. Second. The material averments of the bill are denied by answer under oath. And respondent moves the court to dissolve said injunction both by reason of the want of equity in the amended bill and because of the sworn denials of the answer.” And the order of submission was in this language: “Come the parties by their solicitors, and on respondent’s motion the cause is submitted for decree. Complainant submits on amended bill and exhibits thereto. Respondent submits on motion to dissolve the injunction and on sworn answer to amended bill.” The note of submission made by the register follows the language of this order. There was no motion to dismiss the bill as last 'amended for want of equity, nor was there any submission for decree on the demurrer. The submission shown by the order above as we construe it was solely for decree on the motion to dissolve the injunction; and the 'reference in the order to the bill and exhibits thereto 'and to the answer was merely to get before the chancellor the pleadings necessary to be considered in passing upon the motion to dissolve the injunction. It is clear, we think, that the cause was not intended to be submitted and was not in fact submitted for final decree on the merits. The submission then being only on the motion to dissolve tire injunction, it was error to enter a decree sustaining the demurrer to the bill, and sustaining a motion (which does not appear to have been made) to dismiss the bill for want of equity, and dismissing it out of court-

In so far as the action of the court upon the motion to dissolve the injunction is concerned we deem it necessary to say only that the decree in that regard is fully justified upon the denials of respondent’s sworn answer, and it will he, affirmed.

The decree sustaining the demurrer to the bill and dismissing the bill for want of equity must 'be reversed.

The costs of the -appeal in this court and in the court below will he paid one-half by appellant and the other by appellee.

Affirmed in part and reversed in part.