Burrow v. Berry

• Decision Date: 11 June 1925
• Docket Number: 8 Div. 757
• Citation: 213 Ala. 317,104 So. 786
• Parties: BURROW et al. v. BERRY.
• Court: Alabama Supreme Court

104 So. 786

213 Ala. 317

BURROW et al. v. BERRY.

8 Div. 757

Supreme Court of Alabama

June 11, 1925

Appeal from Circuit Court, Franklin County; Charles P. Almon, Judge.

Bill in equity by T.R. Berry against J.B. Burrow and another. From a decree on motion, respondents appeal. Appeal dismissed.

Stell &amp Quillin, of Russellville, for appellants.

J. Foy Guin, of Russellville, for appellee.

MILLER J.

This is a bill in equity to set aside a conveyance on the ground of fraud, filed by T.R. Berry against J.B. and N.J. Burrow On the previous appeal (211 Ala. 78, 99 So. 732) this court held defendants had the right to file amended answer, withdrawing previous admissions, and entering general denial of averments of the bill of complaint after the submission of the cause but before final decree, and "the trial court will make such orders as are appropriate to that end, imposing terms upon respondent in its discretion, as authorized by the statute." Gen.Acts 1915, p. 705.

When application is made to amend the answer after submission of the cause, at the hearing, and before final decree, so as to set up any matter of defense, it may be filed as a matter of right; but the court shall impose such terms upon the party amending at the hearing, not extending beyond the payment of all the costs as may be fair and equitable. Gen.Acts 1915, p 705, § 1; Burrow v. Berry, 211 Ala. 76, 99 So. 732.

When the cause was reversed, this order was entered by the trial court on June 16, 1924:

"This cause coming on to be heard at this term of the court, the respondent is given leave to file amended answer and the respondent is taxed with the cost of the case to date, and, when the respondent pays the cost of the case, the register will file respondent's amended answer."

On July 9, 1924, the respondents filed a motion which states:

"Now comes the respondents in the above-styled cause and moves the court to set aside an order or decree in the above cause, made and entered on June 16, 1924, taxing the respondents with the cost in the case to date of the order or decree, and for grounds of said motion sets down and assigns the following."

The respondents in this motion seek by its prayer the following relief:

"Wherefore respondents pray that this court will set aside the above order or decree taxing all the cost in the case against the respondents, and cause an order or decree to be entered taxing the respondents with only such cost as had accumulated before and up to filing of the amended answer before final decree and not beyond the rendition of the final decree."

On March 10, 1925, the court entered a decree on this motion which reads as follows:

"This cause, coming on to be heard in term time, was submitted for decree upon the motion of the respondents to amend the decree heretofore entered in this cause on June 16, 1924, and, upon a consideration of the same by the court, the court is of the opinion that said motion is not well taken. It is therefore ordered, adjudged, and decreed by the court that said motion be, and the same hereby is, overruled."

This appeal is prosecuted by respondents from this decree rendered March 10, 1925, and complainant, appellee, moves to dismiss the appeal, because this decree was not such a final decree nor such an interlocutory decree as will support an appeal; that no appeal lies from this decree by statute.

An appeal lies from a judgment or order refusing or granting a motion to retax costs. Section 3684, Code 1907, as amended Gen.Acts 1911, p. 90. However, this is not a motion to retax costs. A motion to retax costs must under the statute set forth the particulars in which the clerk has erred. Section 3684, Code 1907, as amended Gen.Acts 1911, p. 90; Elliott v. Howison, 158 Ala. 71, 48 So. 508. This motion states no facts, no particulars wherein the register erred in the cost placed on respondents. No objection is made...