Cornelius v. Moore

• Decision Date: 18 May 1922
• Docket Number: 6 Div. 578.
• Citation: 208 Ala. 237,94 So. 57
• Parties: CORNELIUS ET AL. v. MOORE ET AL.
• Court: Alabama Supreme Court

94 So. 57

208 Ala. 237

CORNELIUS ET AL. v. MOORE ET AL.

6 Div. 578.

Supreme Court of Alabama

May 18, 1922

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Ejectment by Oliver Z. Cornelius and others against B. T. Moore and others. From an order, after transfer to the equity side of the court, dismissing plaintiffs' declaration, they appeal. Appeal dismissed.

Ray &amp Cooner, of Jasper, and Ward, Nash & Fendley, of Oneonta, for appellants.

Russell & Johnson, of Oneonta, for appellees.

ANDERSON C.J.

An action of ejectment was brought in the circuit court by the appellants against the appellees, whereupon the appellees the defendants in the lower court, filed a motion under section 2 of the Act of 1915, page 830, setting up an equitable defense and praying for a reformation of a deed. The only decree rendered is one ordering the transfer and dismissing a certain claim or declaration filed by the plaintiffs. There is no final decree or judgment, as the court has not determined whether or not the defendant was entitled to equitable relief. No equitable relief has been granted or denied, and we have no such final judgment or decree as will support this appeal. Section 2 authorizes the assignment of error of the order of transfer upon appeal from the final judgment or decree, but does not authorize an appeal from the order of transfer. On the other hand, section 3 authorizes an assignment of error of the order of retransfer upon an appeal from a final judgment or decree of the court in which the case was retransferred. As the order or decree from which this appeal is prosecuted is not such a decree or judgment as will support the appeal, this court has no jurisdiction to entertain the same, which is accordingly dismissed.

Appeal dismissed.

SAYRE, GARDNER, and MILLER, JJ., concur.

On Rehearing.

ANDERSON C.J.

We are not unmindful of the fact that the trial court, after ordering a transfer of the cause to the equity side of the docket, also dismissed what was termed the "complainant's bill," and which meant the claim or assertion filed by the plaintiff, and which was nothing more than the reassertion of the legal title, and did not involve or effect the question of equitable relief as sought by the defendants on the law side of the court, and who should be treated as the complainants upon the equity side. The dismissal of the plaintiff's statement or claim in no sense disposed of the equity of the case and merely had the effect of striking an improper charge from the cause, thus leaving the cause on the equity side to be disposed of by a final decree, determining whether or not the defendants had an equitable right against the plaintiff's action at law, and to grant relief accordingly, or that they had no equitable defense, and retransfer the cause to the law side, and the one or the other seems to be the only final decree contemplated by the act. If a decree is rendered granting equitable relief, then the party appealing may assign as error the order of transfer, and if equitable relief is denied, and the case is retransferred to the law side, it seems that the party appealing from the judgment at law can assign as error the order retransferring the case to the law side of the docket. The act provides for a removal by the plaintiff and also the defendant from the law to the equity side of the court, and after the order of removal is made, provides:

"Within thirty days after any such cause has been so transferred the plaintiff or complainant shall make such amendments to the pleadings as may be necessary to conform to the appropriate pleadings in equity court." Acts 1915, p. 832, § 2.

This necessarily means that after the removal, the movant becomes the plaintiff or complainant on the equity side and should file such pleadings as will properly present the equitable relief sought. In other words, when the...