Davidson v. Rice

• Court: Supreme Court of Alabama
• Citation: 201 Ala. 508,78 So. 862
• Docket Number: 8 Div. 79
• Parties: DAVIDSON et al. v. RICE.
• Decision Date: 11 April 1918

78 So. 862

201 Ala. 508

DAVIDSON et al.
v.
RICE.

8 Div. 79

Supreme Court of Alabama

April 11, 1918

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Bill by J. Henry Davidson and others against W.B. Rice to determine title to land. Decree for respondent, and complainants appeal. Reversed and remanded. [78 So. 863]

Rayburn & Wright, of Guntersville, for appellants.

D. Isbell, of Guntersville, for appellee.

McCLELLAN, J.

The report of this appeal will contain the decree under review. It is to be observed that the decree proper sustained demurrer to the original bill, and finally dismissed the bill without prejudice, omitting the preservation to the complainants of the right to amend to meet the objection justified by the court's judgment. The demurrer to the original bill was filed "along with this full answer," from which we conclude that the demurrer was incorporated in the answer, as Code, § 3128, contemplates. Rule 72 of Chancery Practice (Civil Code, p. 1550) provides:

"All demurrers, whether contained in the answer or not are to be disposed of on the calling of the cause, without waiting for the cause to be ready on the proof; but when the cause is ready for hearing on the pleadings and proofs, it must be heard, without waiting for a separate decision on a demurrer contained in the answer."

Rule 73 of chancery practice (Civil Code, p. 1550) provides:

"All exceptions to bills, answers, reports, or testimony, whether coming before the court in the first place for consideration, or by way of appeal or review, must be heard in connection with the equity of the bill, unless that question has been previously decided or admitted; also, if there is a demurrer undisposed of in the case, it must be considered by the court at the same time with the exceptions."

It has been decided that the filing of answer in which demurrer is incorporated does not waive the demurrer. Ray v. Womble, 56 Ala. 32, 40.

In the view of the cause prevailing with this court, it is unnecessary to consider the question, pressed in brief for appellant, whether rule 75, when read in connection with rules 72 and 73, quoted ante, forbids the consideration by the courts of a demurrer not listed on the note of testimony filed upon the submission of the cause. In any event the general practice is to list demurrers; and an observance of this custom would avoid any question in the premises.

The decree recites that the...