Derzis v. Cox, 6 Div. 824.
Decision Date | 29 October 1931 |
Docket Number | 6 Div. 824. |
Citation | 223 Ala. 517,137 So. 306 |
Parties | DERZIS v. COX. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Action on promissory notes by W. T. Cox against Nick Derzis. From a judgment for plaintiff, defendant appeals.
Affirmed.
Nick Lallas and Walter H. Anderson, both of Birmingham, for appellant.
Inzer Inzer & Davis, of Gadsden, and Altman & Koenig, of Birmingham, for appellee.
The action is on a series of four promissory notes of $2,250 each, given for the purchase money of lands.
Plaintiff is the vendor and the payee of the notes, the defendant the purchaser and the maker of the notes.
Defendant claiming an equitable defense, filed a motion to transfer the cause to the equity docket under Code, § 6490.
Demurrer to the motion, as amended, was sustained. This ruling is assigned as error.
It is now well settled that an order denying such motion, or rulings resulting in such denial, are not reviewable by appeal taken from such interlocutory order, nor on appeal from the final judgment. Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916; Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843; Fountain v. State, 211 Ala. 586, 100 So. 892; Smith v. Grayson, 214 Ala. 197, 107 So. 448; Wiggins v. Stewart Bros., 215 Ala. 9, 109 So. 101; Ex parte Holzer, 219 Ala. 431, 122 So. 421; Jones v Wright, 220 Ala. 406, 125 So. 645.
The substance of the motion was presented in pleas of recoupment, especially plea 5, which, omitting the description of the property, appears in the report of the case. Issue was joined on these pleas, and the evidence was directed chiefly to such issue.
It appears the property conveyed was intended as a site for the location of a building material and coal business, one calling for a railroad siding or spur track. A lead track of the Louisville & Nashville Railroad ran along the north boundary of the property. By a prior conveyance of the adjoining property on the south to East View Land Company, the grantee agreed to extend a railroad track along the north side of the land therein conveyed, and to pay for certain connections with such track. The grantor, Cox, in such conveyance reserved the right to the free use of such track for his adjoining property on the north, the same property conveyed to defendant Derzis.
The only reference to this proposed track in the writings is by way of description, as the south boundary of the parcel sold, in the preliminary contract embodied in the receipt for the initial payment.
The evidence touching any personal agreement on the part of Cox to construct or cause such side track to be constructed was in direct conflict. It consisted of parol testimony of witnesses heard by the trial court, sitting without a jury. Without further details, our conclusion is, that, indulging the well-known presumption in favor of the finding of the trial judge, his conclusion upon the merits of the pleas in...
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