60 Ala. 369 | Ala. | 1877
The appellee filed an original bill, for the rescission of a contract for the purchase of lands, made with the appellant. The bill was filed in the proper chancery district; but, the chancellor having an interest in the suit, on the application of the appellant it was transferred to another division and district. At the time of the transfer, the case was standing for hearing, on the demurrer of the appellant to the original bill, no answer having been made. After the transfer, additional grounds of demurrer were filed; and a decree was rendered, overruling the demurrer in part, and in part sustaining it. From this decree, an appeal to this court was, within thirty days, prayed and obtained by the defendant. On the day of taking the appeal, the cause was re-transferred to the court in which it had been commenced. Six days thereafter, the appellant filed her answer to the original bill. The bill was subsequently amended, to
Prior to the statute of March 20, 1875, now forming section 3918 of the Code of 1876, an appeal would not lie from a decree overruling a demurrer to a bill in equity, unless the complainant consented of record to the prosecution of such appeal. — Hightower v. Kennedy, 11 Ala. 562; Rev. Code, § 3486. The reason is, that, in our practice, such a decree is not final. The defendant has the unqualified right to plead, or answer, after the demurrer is overruled. The cause remains pending and undetermined, and it may be, on a final hearing, a decree will be pronounced in his favor, rendering harmless the decree overruling the demurrer. It may be, also, that on the final hearing the chancellor may be satisfied he was in error in overruling the demurrer; and if he was, and the defect is incapable of being cured by amendment, he is not bound to persist in the error, but may render the proper decree, dismissing the bill, though it is supported by evidence. A final decree, disposing of the equities of the case, declaring finally the rights and liabilities of the parties, alone would, prior to the statute to which we have referred, support an appeal.—Garner v. Prewitt, 32 Ala. 15. The result, in practice, was, that parties were sometimes compelled to the delay and cost of protracted litigation on the facts of cases, which, on demurrer, ought to have been pronounced not within the jurisdiction or pleas were sustained, or overruled, on which, if the proper judgment had been rendered in the primary stages of the cause, the litigation would have terminated.
To remedy this evil, the statute affords the right of appeal, from a decree sustaining or overruling a demurrer, or a motion to dismiss a bill for want of equity, or sustaining or overruling a plea to such bill, if the appeal is taken within thirty days after the rendition of the decree; and in this court, the appeal is to be heard in preference to other than criminal cases, and the court is commanded to render the decree the chancellor should have rendered, if the decree is
Under our statutes, prior to the Code, pleading to an amended declaration was a waiver of the right on error to question the correctness of the order allowing the amend