113 Ala. 577 | Ala. | 1896
The averments of the bill show, that the proceeds of certain land were held in trust by the father of complainants, to be invested by him in the purchase of other, lands for their benefit, that the money was invested by him in other lands, but the title thereto taken in his individual name. The bill further shows that a part of the lands thus purchased were sold to re-pondent, and a deed made to him by their father ; but it is expressly averred that respondent purchased the land with full notice and knowledge of the interest and claim of complainants. The prayer is that the conveyances to respondent be annulled, and that the lands be deemed to belong to complainants, and there is a prayer for general relief. According to the averments of the bill, the right of complainants to relief in nowise depends upon the parol agreement of the father, that he would invest the money in the purchase of lands for their benefit; but their rights result by operation of law, that the money did not belong to their father, but was received by him and held for their benefit, and which was invested in lands. The cause came on to be heard in vacation on a motion to dismiss the bill for want of equity, and it was decreed in vacation “that the bill is without equity, and that it be dismissed, ” and it was further decreed that “no allowance to amend is given.” The appeal is prosecuted from the decree rendered in vacation dismissing the bill.
The case was submitted in this court upon the merits, and upon a motion by appellee to dismiss the appeal. The motion to dismiss the appeal is based upon the fact, that the appeal was not prosecuted within thirty days from its rendition.
Section 3612 of the Code of 1886 reads as follows : ‘ ‘From any decree; rendered by the chancery court in term time, or by the chancellor in vacation, sustaining or overruling a demurrer to a bill in equity, or sustaining or overruling a plea to such bill, or sustaining or
Section 3619 of the Code of 1886 reads as follows : ‘ ‘Appeals under this title, except in such cases as a different time is prescribed, must be taken within one year from the rendition of the judgment or decree.”
The uniform decisions of this court are, that a party is allowed twelve months within which to take an appeal from any final decree or judgment. It would be difficult to frame a decree more absolutely and unequivocally final. No one can read it and have any doubt, that if it had been rendered in term time that it would be held a final decree, and that an appeal could be taken from it at any time within one year. The fact that it was rendered in vacation can not change its character as a final decree. The right to appeal under section 3612 is a personal privilege, of which the party may avail himself or not. If he does not, he is entitled to all adverse rulings under that section after a final decree in the cause, from which an appeal may be taken within one year. — § 3619, supra. The motion to dismiss the appeal is overruled.
The abstract does not contain the opinion of the chancellor, if one was rendered by him, and we do not know the reasons for his conclusion that the bill was without equity. The appellee has not furnished a brief in the case upon the merits. It is not a safe practice to dismiss a bill in vacation on the pleadings, and thereby deprive the complainant of all opportunity to amend his bill.-Forest v. Luddington, 68 Ala. 1; Winn v. Dillard, 60 Ala. 369; Stoudenmier v. DeBardeleben, 72 Ala. 300; Goodlet v. Kelly, 74 Ala. 213.
Reversed and remanded.
