Cofer v. Wilhite

• Decision Date: 17 February 1906
• Citation: 40 So. 340,146 Ala. 686
• Parties: COFER v. WILHITE ET AL. a1
• Court: Alabama Supreme Court

40 So. 340

146 Ala. 686

COFER v. WILHITE ET AL. a1

Supreme Court of Alabama

February 17, 1906

Appeal from Chancery Court, Cullman County; W. H. Simpson, Chancellor.

"Not officially reported."

Suit by W. T. L. Cofer against Nannie Wilhite and others. From an order overruling demurrers to the cross-bill and motion to strike, and refusing an amendment to the original bill, complainant appeas. Dismissed.

The bill in this cause was filed by appellant against the above-named appellee. On motion of Mrs. Richardson, based upon the allegation that she was the real party at interest, the chancellor allowed her to intervene and file a cross-bill and answer, but required her to elect whether she would pursue her remedy in chancery or her action of ejectment already begun against appellant in the circuit court for possession of the lands. This appeal is prosecuted from an order of the chancellor overruling demurrers to the cross-bill and motion to strike, and also refusing an amendment to the original bill.

J. A. W. Smith, for appellant.

Brown & Hipp, for appellees.

ANDERSON, J.

This appeal is taken from a decree rendered by the chancellor, June 15, 1905, refusing to allow an amendment to the original bill and overruling a motion to strike and demurrers to the cross-bill, and which is an interlocutory decree, but not such a one as will support an appeal under section 428 of the Code of 1896. Walker v. National Trust Co., 133 Ala. 240, 31 So. 802; Bickley v. Bickley, 129 Ala. 404, 29 So. 854; Throne-Franklin Shoe Co. v. Gunn, 123 Ala. 640, 26 So. 198; Barclay v. Spragins, 80 Ala. 357; Jones v. Woodstock Co., 90 Ala. 545, 8 So. 132; Festorazzi v. Catholic Church, 96 Ala. 178, 10 So. 521; Nabers v. Morris Mining Co., 103 Ala. 543, 15 So. 850; Winn v. Dillard, 57 Ala. 167; Parish's Adm'r v. Galloway, 34 Ala. 163.

The decree not being a final one, from which an appeal could be taken under section 426 of the Code of 1896, and not one of the interlocutory ones mentioned in section 427, the appeal must be dismissed.

Appeal dismissed.

HARALSON, DOWDELL, SIMPSON, and DENSON, JJ., concur.