12 So. 2d 567 | Ala. | 1943
Plaintiff sued to recover damages suffered, as he alleges in his complaint, on account of the negligence of defendant J. R. White in removing his house under contract with the State highway construction, and White's bondsman is also made party defendant. Presumably, on account of adverse ruling on demurrer to his complaint plaintiff moved for a non-suit and appealed. The point is made by appellees that the judgment entered is not such a final judgment as will support an appeal, and of consequence the appeal should be dismissed.
After reciting that plaintiff moved for a non-suit on account of adverse ruling of the court, the minute entry proceeds: "It is therefore considered and adjudged by the court that the defendant go hence and have and recover of the plaintiff all costs incurred in this prosecution, for which let execution issue."
This order "put the case out of court," and constitutes a final judgment. Wood v. Coman,
The appeal is not therefore due to be dismissed.
The assignments of error and argument based thereon relate to the alleged ruling of the court sustaining demurrer to plaintiff's complaint.
The point is made by appellees that the minute entry discloses no sufficient judgment of the court on demurrer which justifies a review thereof. We feel impelled to hold the point is well taken. The only matter relating to the court's ruling on demurrer is the following: "August 18, 1941. The court sustains said demurrers and the plaintiff is given ten days to file amended complaint or take".
A very similar entry was involved in Tallassee Falls Mfg. Co. v. Western Railway of Alabama,
Following in the wake of our uniform decisions upon the question, it must be said there is no judgment on demurrer sufficient to here permit a review thereof, and that the assignments of error based thereon are not for consideration.
It results that the judgment is due to be affirmed. It is so ordered.
Affirmed.
THOMAS, BROWN, and LIVINGSTON, JJ., concur.