194 So. 176 | Ala. | 1940
This is an appeal sought to be effected by a married woman under the authority of section 6138, Code.
There was a motion to dismiss the appeal on the ground that this case is not within the provisions of that section of the Code, and the cause is now being heard on that motion.
The suit was begun by appellant, a married woman, alleging the execution by her of a mortgage on her real estate to secure the purchase price of certain property, and alleges fraud in the sale of that property to her damage, on account of which she sought to have the mortgage cancelled by the court, and to have a judgment for damages.
On January 14, 1939, the court sustained a demurrer to the bill, and allowed time to amend. An amendment was filed, to which defendant demurred. On April 11, 1939, the demurrer was sustained, and the cause dismissed. Complainant sought to appeal May 3, 1939, under section 6138, Code.
Under its (section 6138, supra) authority, a married woman is permitted to appeal without giving security for the costs upon making affidavit of her inability to do so, in cases there enumerated: that is, when the judgment either (1) subjects to sale any of her property; (2) or it is for the payment of money, or (3) is for the doing or performing of any act by her.
The question here is whether the judgment sustaining the demurrer to her bill, which we have described, and dismissing it, is embraced in one of the three alternatives enumerated in the statute.
We have had numerous cases on the subject. In the case of Lea v. Phillips,
We have also held in several cases that a decree or judgment for the recovery of land is not within the statute, since it does not subject her property to sale, and is not for the payment of money, though there is a decree for costs, and does not order the performance of any specific act. Nichols v. Snead,
But the statute has express application when a decree orders land whose title is held by a married woman to be sold to satisfy her husband's debts. Naff v. Fairfield-American National Bank,
But this result does not follow merely because the decree leaves unaffected other proceedings either begun or threatened whereby her property may in them be subjected to sale. The statute is not beneficial to her in that respect until her property is thus ordered to be sold, or is condemned to sale.
Upon the authority of the foregoing cases, and the clear language of the Code section relied on, appellant is not here in a position to take advantage of it. And although the decree was final so as to allow six months in which to appeal (Peters v. Chas. Schuessler Sons, supra; section *148
6127, Code; Hartford Acc't Indemnity Co. v. Green,
The motion to dismiss the appeal is granted, and the appeal is dismissed.
Appeal dismissed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.
