Holland v. Dwight Mfg. Co., 7 Div. 350

• Decision Date: 13 February 1936
• Docket Number: 7 Div. 350
• Parties: HOLLAND et al. v. DWIGHT MFG. CO.
• Court: Alabama Supreme Court

165 So. 756

231 Ala. 506

HOLLAND et al. v. DWIGHT MFG. CO.

7 Div. 350

Supreme Court of Alabama

February 13, 1936

Appeal from Circuit Court, Etowah County; J.H. Disque, Jr., Judge.

Suit in equity by the Dwight Manufacturing Company against J.P. Holland and others. From a decree sustaining demurrer to motion to vacate former order or decree, respondents appeal.

Appeal dismissed.

Rains & Rains, of Gadsden, for appellants.

Dortch, Allen & Dortch, of Gadsden, for appellee.

ANDERSON, Chief Justice.

The appellant made a motion to dissolve the temporary injunction and subsequently amended it to also cancel a consent order made by the court for an indefinite continuance of the cause upon the ground that counsel appearing for the respondents had no authority to do so. The appellee demurred to the motion, and the trial court overruled the demurrer as applicable to the feature which sought a dissolution of the injunction, but sustained the demurrer to so much of the motion as sought to cancel the order of continuance as made by the consent of counsel in open court. So this appeal is from the decree sustaining the demurrer to this last feature of the motion. This was in no sense a final decree under section 6078 of the Code of 1923, nor is it such an interlocutory decree as covered by section 6079, and will not therefore support an appeal.

This being a question of jurisdiction, the appeal must be dismissed ex mero motu. Wood v. Finney, 207 Ala. 160, 92 So. 264; Alston v. Marengo County Board of Education, 224 Ala. 676, 141 So. 658; Prout v. Hoge, 57 Ala. 28.

Appeal dismissed.

GARDNER, BOULDIN, and FOSTER, JJ., concur.