Lehman, Durr & Co. v. Ford

47 Ala. 733 | Ala. | 1872

PETERS, J.

This is a motion to dismiss this appeal, because tbe same has been prematurely taken. And in connection witb tbis motion to dismiss, there is also an application for mandamus to compel tbe reinstatement and restoration of tbe cause to tbe docket in tbe court below.

Tbe bill in tbis case is a cross-bill, regularly filed as such, and not an answer to an original bill in chancery turned into a cross-bill under our statute. It is, then, not a mere statutory proceeding, to be governed by tbe rules prescribed by tbe statute, or growing out of it. Such a bill is an auxiliary suit, in which tbe complainant may be entitled to independent relief connected witb tbe matters of tbe original bill. Tbe cross-bill is a suit which terminates in a final judgment. — Story Eq. Pl. §§ 389, 398. And it is served, and answered, and proceeded in just , as if it were an original bill, until it is finally disposed of. — 3 Daw. Ch. Pr. pp. 1746-7. In Brooks v. Woods, such a bill has been treated as a separate suit so far as to allow an appeal from an order of dismissal on sustaining a demurrer for want of equity. — 40 Ala. 538; Story Eq. Pl. §§ 628, 630, 632. This is a convenient practice, and we see no sufficient reason to overrule it. La the practice of the English courts, á cross-bill may be treated as a separate suit, and filed in a different court. — 3 Dan. Ch. Pr. p. 1746, note 2. We therefore think that the appeal in this case ought to be retained. If it is, the necessity for a mandamus is removed.

[Nous bx Reporter. — The opinion in this ease was delivered at the June term, 3871, hut was omitted from the 46th volume of Reports on account of a want of space.]

The mandamus is denied, with costs, and the motion to dismiss is denied, with costs.