Cooper v. Cooper

Decision Date12 May 1927
Docket Number7 Div. 682
Citation216 Ala. 366,113 So. 239
PartiesCOOPER v. COOPER et al.
CourtAlabama Supreme Court

Rehearing Denied June 15, 1927

Appeal from Circuit Court, De Kalb County; R.B. Carr, Judge.

Action for damages by Joseph Cooper against John F. Cooper and others. From a judgment sustaining defendant's motion to strike the complaint, plaintiff appeals. Appeal dismissed.

Joseph Cooper, pro se.

Baker & Baker and C.A. Wolfes, all of Ft. Payne, and J. Wiley Logan, of Birmingham, for appellees.

GARDNER, J.

Upon the merits of this appeal, it is insisted that the motion of the defendants to strike the complaint as violative of section 9457, Code of 1923, is supported by the cases of Cooper v. Cooper, 204 Ala. 183, 85 So. 468, Cook, etc., Contracting Co. v. Bell,

177 Ala. 618, 59 So. 273.

Preliminary, however, to a consideration of this question, is that embraced in the motion of appellees to dismiss the appeal based upon the ground that there has been entered no final judgment in the cause as will support an appeal. As pertinent to this question, the judgment entry discloses only that the court sustained the motion of defendants to strike the complaint, and nothing more. This was not a final disposition of the cause. The case is not distinguishable in principle from Wise v. Spears, 200 Ala. 695, 76 So. 869, and Eslava v. Jones, 79 Ala. 287. See, also, State ex rel. Wright v. Kemp, 205 Ala. 201, 87 So. 836; Lathrop Lbr. Co. v. Pioneer Lbr. Co., 207 Ala. 522, 93 So. 427; Martin v. Ala. Power Co., 208 Ala. 212, 94 So. 76; Johnson v. Westinghouse, Church, Kerr & Co., 209 Ala. 672, 96 So. 884; Clements v. Hodgens, 210 Ala. 486, 98 So. 467; Jemison v. Town of Ft. Deposit, 214 Ala. 471, 108 So. 397.

The question is a jurisdictional one, and the appeal must be dismissed.

Appeal dismissed.

SAYRE, BOULDIN, and BROWN, JJ., concur.

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16 cases
  • State v. Grayson
    • United States
    • Alabama Supreme Court
    • June 27, 1929
    ... ... costs to support an appeal, are declared in Ex parte Adams, ... 216 Ala. 241, 113 So. 235; Cooper v. Cooper, 216 ... Ala. 366, 113 So. 239; Martin v. Ala. Power Co., 208 ... Ala. 212, 94 So. 76; Lathrop Lumber Co. v. Pioneer ... Co., 207 ... ...
  • Harris v. Barber
    • United States
    • Alabama Supreme Court
    • January 26, 1939
    ... ... 254, 68 So. 265) and is subject to ... review by appeal. (Code, § 6078; Ex parte Adams, 216 Ala ... 241, 113 So. 235; Cooper v. Cooper, 216 Ala. 366, ... 113 So. 239; Martin v. Alabama Power Co., 208 Ala ... 212, 94 So. 76; Lathrop Lumber Co. v. Pioneer Lumber ... Co., ... ...
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