Box v. Metropolitan Life Ins. Co.

• Citation: 232 Ala. 1,168 So. 216
• Decision Date: 30 November 1934
• Docket Number: 7 Div. 273
• Parties: BOX v. METROPOLITAN LIFE INS. CO.
• Court: Supreme Court of Alabama

168 So. 216

232 Ala. 1

BOX v. METROPOLITAN LIFE INS. CO.

7 Div. 273

Supreme Court of Alabama

November 30, 1934

Certiorari to Court of Appeals.

Action by John T. Box against the Metropolitan Life Insurance Company. Plaintiff's appeal from a judgment for defendant was dismissed by the Court of Appeals (168 So. 209), and plaintiff applies for certiorari to review and revise such court's judgment and decision.

Writ granted, judgment of the Court of Appeals reversed, and cause remanded thereto.

See also, Box v. Metropolitan Life Ins. Co. (7 Div. 317) (Ala.Sup.) 168 So. 217.

Appeal from judgment for defendant on plea in abatement, filed after withdrawal of demurrer to complaint with court's permission, should not be dismissed on ground that previous judgment sustaining demurrer terminated case.

Chas F. Douglass, of Anniston, for petitioner.

Chas D. Kline, of Anniston, and Cabaniss & Johnston and L.D Gardner, Jr., all of Birmingham, for respondent.

FOSTER Justice.

We cannot agree with the opinion of the Court of Appeals that when the demurrer to the complaint was sustained the case was at an end and that nothing remained in the court.

Such a judgment only disposes of the pleading to which it was addressed. It did not dismiss the suit, and was not appealable. Gibbs v. Southern Express Co., 201 Ala. 506, 78 So. 860. If it were otherwise, there could be no amendment or other proceeding had after demurrer to complaint is sustained. For that can only be done "whilst the cause is in progress." Section 9513, Code.

A judgment sustaining demurrers to the complaint is generally held not such a final adjudication that the court may not at any time before final judgment reconsider its ruling and enter a contrary one, 49 Corpus Juris 453, note 42, and only justifies a final judgment when plaintiff declines to plead further, McMahen v. Western Union Tel. Co., 209 Ala. 319, 96 So. 265, but is not a termination of the action, 49 Corpus Juris 452, note 11.

If the case is at an end and nothing remained, the plaintiff could not take a nonsuit, as suggested, by authority of section 6431, Code. When it is at an end, it is so only because of a final judgment, and an appeal is available from all final judgments. Section 6078, Code.

The cause was in fieri until the judgment was rendered on the verdict of the jury. Birmingham v. Andrews, 222 Ala. 362, 132 So. 877.

But counsel for appellee contend that the result reached by the Court of Appeals is correct upon the principle that there must be a complaint to support a judgment.

That principle is not questioned when the judgment is for plaintiff. Seymour v. Day, 207 Ala. 60, 91 So. 875.

But when the issues are framed on...