142 Ala. 439 | Ala. | 1904
The right of appeal exercised in this case is that given by section 426 of the Code-, and not that given by section 427. The decree dismissing the bill was no less a final decree for that it was rendered on and in response to- a motion to dismiss it for the want of equity. There has been a practice in this state to-grant motions to- dismiss with leave to- amend. Such decrees while they granted the motion to dismiss in a way, yet did not in reality dismiss the bill finally. They were in the nature of tentative or conditional decrees and not final. To- such decrees must be referred the provision of section 427 to the effect that from a decree sustaining a motion- to dismiss a bill for want of equity an appeal may be taken within thirty days. That limitation loes not apply where the motion is not only sustained hut the bill is actually and absolutely dismissed-out of court. The decree here is of this latter class, and was appealable any time within a year from its rendition.
We take occasion to- repeat here what- we have said in some recent cases that the practice referred to of thus conditionally dismissing bills on motion, and in recognition of which the provision of § 427 stated above was enacted, was a bad practice, and illogical, and should not be further resorted to-.
On the allegations of the hill the complainants had no claim on the stock of goods growing out of the facts that originally it had been the property of the- partnership composed of Barley & Matkin and that this firm owed the debts which complainants seek to recover by subjecting these goods or their proceeds, for, by a bona -fide and valid agreement by which the partnership had been settled and dissolved, the stock of goods became the individual property of Matkin. .But the co-mplain
The assignments of demurrer also proceed upon the assumption that the bill shows that this stock of goods
The decree below must be reversed and a decree will be here entered overruling the demurrer and the motion to dismiss the bill.
Reversed and rendered.