132 Ala. 222 | Ala. | 1902
— Authority for appealing from an interlocutory decree sustaining a demurrer 'to a bill in equity is found alone in section 427 of the Code. By that section time for taking an appeal in such case is limited to thirty days after the rendition of such decree, and no exception is made as to cases where time has been allowed for amending the bill. The appeal in this case having been taken after the lapse of thirty days from the decree sustaining the demurrer though within thirty days after expiration of the time allowed for "amendment was unauthorized and is therefore not within the jurisdiction of this court. Had complainant, when the demurrer was sustained elected to stand on that ruling and suffered the hill dismissed the decree of dismissal would have been appealable under the twelve months statute applicable to final decrees; but the provision contained in the decree on demurrer that “complainant has thirty days within which to amend said bill so as to give it equity or it will stand dismissed,” did not of its own force dismiss the bill or determine that suit or right in respect of its subject matter, and therefore is not a final decree. That order contains What is equivalent to a direction for a dismissal upon a contingency and in such case a subsequent order is requisite to finally effect the dismissal. See Ex parte McLendon, 33 Ala. 276; Reese v. Billing, 9 Ala. 263; Jones’ Admr. v. Craig, 127 U. S. 213; Phipps v. VanCott, (N. Y.) 4 Abb. Prac. 90; Railroad Co. v. Fosdick, 106 U. S. 69; 5 Ency. Pl. & Pr., 951, 952.
The motion to dismiss the appeal will be granted.