73 So. 46 | Ala. | 1916
The motion to strike the assignment of error is well taken, and must be granted unless the quoted act was repealed by the act (section 1) approved September 27, 1915 (Gen. Acts 1915, p. 711). So far as presently pertinent, the act approved September 22, 1915, provides: “That any appeal taken under the provisions of chapter fifty-three (53) of the Code of 1907 must be taken within six months from the rendition of the judgment or decree. * * * >’
Section 2838 of. the Code of 1907, amended by the act approved March 17,1915 (quoted before), is a part of chapter 53 to which express reference is made in the act approved September 22, 1915, in part reproduced above.
To the same effect is Parker v. Hubbard, 64 Ala. 203; City Council, etc., v. Nat. B. & L. Asso., 108 Ala. 336, 18 South. 816; Lee v. State, 143 Ala. 93, 39 South. 366. The act approved March 17, 1915, is special, specific in nature and effect. It governs rulings and appeals of a particular class. The later act, approved September 22, 1915, is general in its nature and effect. Its terms, descriptive of the appeals to be effected thereby, are general, and their reference is to a Code chapter that is devoted to the general subject of appeals. The rule of construction above quoted is applicable. The former specific enactment was not modified or repealed, as to the time prescribed in the former statute, by the later enactment. Both have a separate field of operation. The former enactment controls in all cases of the particular classes described in it. The appeal from the decree of November 29, 1915, sustaining the demurrer, was not taken within the 30-day period prescribed by the act of March 17, 1915. There has been no decree finally determining the cause as within the conditional prescription of the last provisions of the act of March 17, 1915. Hence the motion to strike the first assignment of error is due to be, and it is, granted. Whether, as is suggested in the brief for appellee, the complainant’s amendment of December 15, 1915, operated to waive his right to appeal from the decree of November 29, 1915, is a question not necessary to be considered, in view of the conclusion we have announced. See 4 Ene. L, & P. pp. 97, 98; Winn v. Dillard, 60 Ala. 369; especially, Homison v. Baird, 138 Ala. 129, 132, 35 South. 62.
There was no error in sustaining the demurrer to the amended bill. ■
Affirmed.