Holder v. Taylor, 8 Div. 764

CourtSupreme Court of Alabama
Writing for the CourtFOSTER, Justice.
Citation233 Ala. 477,172 So. 761
PartiesHOLDER v. TAYLOR et al.
Docket Number8 Div. 764
Decision Date18 February 1937

172 So. 761

233 Ala. 477

HOLDER
v.
TAYLOR et al.

8 Div. 764

Supreme Court of Alabama

February 18, 1937


Appeal from Circuit Court, Jackson County; A.E. Hawkins, Judge.

Bill in equity by J.L. Taylor and Claude Taylor against Katie Belle Holder. From a decree overruling a demurrer to the bill, respondent appeals.

Affirmed.

Proctor & Snodgrass, of Scottsboro, for appellant.

Hubert C. Hayes and Harold O. Weeks, both of Scottsboro, for appellees. [172 So. 762]

FOSTER, Justice.

This suit was begun at law for the recovery of land in the nature of ejectment. It was transferred to the equity side of the docket ex mero motu. Plaintiff filed a bill after such transfer, as was appropriate. Meadows v. Birmingham Federal Savings Loan Society, 232 Ala. 3, 166 So. 53.

Demurrer to the bill was overruled, from which this appeal was prosecuted. Since this is not a final decree, appellant cannot assign as error the order of transfer. An appeal is statutory, and unless the statute so authorizes, it cannot be used to review the ruling of a trial court. Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916; Smith v. Grayson, 214 Ala. 197, 107 So. 448.

An order refusing to transfer may not be assigned on any sort of an appeal, and one which makes the transfer can only be assigned for error on appeal from a final decree. Ex parte Louisville & Nashville R.R. Co., 211 Ala. 531, 100 So. 843; Pearson v. City of Birmingham, supra; sections 6487, 6491, Code; Derzis v. Cox, 223 Ala. 517, 137 So. 306. After the transfer has been made, a bill should be filed which invokes some equitable right.

The bill here alleges that the transfer was made ex mero motu over the objection of both plaintiff and defendant.

Our only problem is whether the bill is subject to the demurrer. The bill shows that the controversy relates to the ownership of a small strip of land between their respective holdings, complainants on the south and defendant on the north, and that it is apparently dependent upon the correct boundary line between them. A court of equity has jurisdiction to settle that controversy, sections 6465, 6439, Code, although it might also be settled in the ejectment suit which was begun for that disputed strip. As against a demurrer for want of equity, the bill may be sustained for that reason.

Another aspect of the bill is that the lands of complainant and respondent which join were all a part of the W.L. Martin estate, and that it was divided among his heirs, and that in the division had in court provision was made for an existing roadway to remain open for the use of the owners of the respective parcels set off to the heirs; that since this ejectment suit was begun respondent has constructed a fence across a portion of the road depriving complainants of the use of it. It is sought to have the obstruction removed. This is incidental to the main controversy, and is not improperly included, nor subject to demurrer on that ground.

The suit was begun by J.L. Taylor alone, on October 24, 1932; defendant pleaded not guilty, and on September 5, 1933, it was transferred to equity. The bill alleges that on December 12, 1933, J.L. Taylor conveyed it to Claude Taylor. The bill was filed August 31, 1935. From this it appears that the deed was made after the order of transfer and before the bill was filed.

The transfer to equity and the filing of a bill there was not the beginning of a new suit in equity, but was a continuation of it as begun at law. The only...

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24 practice notes
  • Branyon v. Kirk, 8 Div. 917.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...of a supplemental bill * * * [and] under our chancery practice, the same purpose can be accomplished by an amendment." Holder v. Taylor, 233 Ala. 477, 172 So. 761, 763. While this conveyance was not of the whole interest of the complainant in the suit, it was of his whole interest in so far......
  • Vacalis v. Lowry, 1 Div. 261
    • United States
    • Supreme Court of Alabama
    • March 17, 1966
    ...unless provided by statute and unless a statute so authorizes it cannot be used to review the ruling of a trial court. Holder v. Taylor, 233 Ala. 477, 172 So. We hold that § 755, Title 7, Code 1940, as amended by Act 72, supra, does not authorize an appeal from a decree dismissing a bill wi......
  • Ex parte City of Bessemer, 6 Div. 649.
    • United States
    • Supreme Court of Alabama
    • June 6, 1940
    ...the equity docket of the court that equitable defenses may be availed of and where the same cannot be asserted at law. Holder v. Taylor, 233 Ala. 477, 172 So. 761; Ex parte Tennessee Valley Bank, 231 Ala. 545, 166 So. 1; Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843. In Hendrix......
  • Louisville & N. R. Co. v. Solchenberger, 6 Div. 81
    • United States
    • Supreme Court of Alabama
    • May 19, 1960
    ...any sort of an appeal, and one which makes the transfer can only be assigned for error on appeal from a final decree.' Holder v. Taylor, 233 Ala. 477, 172 So. 761, 762; Derzis v. Cox, 223 Ala. 517, 137 So. 306; Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843; Pearson v. City of B......
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24 cases
  • Branyon v. Kirk, 8 Div. 917.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...of a supplemental bill * * * [and] under our chancery practice, the same purpose can be accomplished by an amendment." Holder v. Taylor, 233 Ala. 477, 172 So. 761, 763. While this conveyance was not of the whole interest of the complainant in the suit, it was of his whole interest in so far......
  • Vacalis v. Lowry, 1 Div. 261
    • United States
    • Supreme Court of Alabama
    • March 17, 1966
    ...unless provided by statute and unless a statute so authorizes it cannot be used to review the ruling of a trial court. Holder v. Taylor, 233 Ala. 477, 172 So. We hold that § 755, Title 7, Code 1940, as amended by Act 72, supra, does not authorize an appeal from a decree dismissing a bill wi......
  • Ex parte City of Bessemer, 6 Div. 649.
    • United States
    • Supreme Court of Alabama
    • June 6, 1940
    ...the equity docket of the court that equitable defenses may be availed of and where the same cannot be asserted at law. Holder v. Taylor, 233 Ala. 477, 172 So. 761; Ex parte Tennessee Valley Bank, 231 Ala. 545, 166 So. 1; Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843. In Hendrix......
  • Louisville & N. R. Co. v. Solchenberger, 6 Div. 81
    • United States
    • Supreme Court of Alabama
    • May 19, 1960
    ...any sort of an appeal, and one which makes the transfer can only be assigned for error on appeal from a final decree.' Holder v. Taylor, 233 Ala. 477, 172 So. 761, 762; Derzis v. Cox, 223 Ala. 517, 137 So. 306; Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843; Pearson v. City of B......
  • Request a trial to view additional results

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