Devane v. Smith
| Decision Date | 12 May 1927 |
| Docket Number | 4 Div. 307 |
| Citation | 112 So. 837,216 Ala. 177 |
| Parties | DEVANE v. SMITH. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.
Petition in equity by C.E. Smith against W.S. Devane. From a decree overruling a demurrer to the petition, respondent appeals. Appeal dismissed.
Owen & Carmichael, of Elba, for appellant.
Wilkerson & Brunson, of Elba, for appellee.
Administration of guardianship of the estate of a minor was removed from the probate into the circuit court in equity. Petition was filed by appellee to have the guardian removed and himself, father of the minor, appointed in his stead. The guardian's demurrer to the petition was overruled, and this appeal is prosecuted from the decree overruling said demurrer.
Upon consideration of this cause in consultation, the conclusion has been reached that the interlocutory decree rendered in this cause is not appealable. The petition here cannot be construed as a bill in equity so as to come within the influence of section 6079 of the Code of 1923. We find no statute authorizing an appeal from such an interlocutory decree rendered on a petition of this character. Appeal is statutory, and the question is a jurisdictional one. The appeal is therefore dismissed.
Appeal dismissed.
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...but by the grace of a statute * * * and must be perfected and prosecuted pursuant to the time and manner prescribed.' In DeVane v. Smith, 216 Ala. 177, 112 So. 837, it is stated as 'Appeal is statutory, and the question is a jurisdictional one.' This Court, in speaking of appeals under § 78......
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Jones v. City of Opelika, 5 Div. 356.
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