Lide v. Park
| Decision Date | 14 January 1902 |
| Citation | 31 So. 360,132 Ala. 222 |
| Court | Alabama Supreme Court |
| Parties | LIDE v. PARK ET AL. |
Appeal from city court of Montgomery; A. D. Sayre, Judge.
Action by Frank W. Lide against Lemuel Park and others. From an interlocutory decree, sustaining demurrer to the bill, the plaintiff appeals, and defendants file motion to dismiss the appeal. Motion sustained, and appeal dismissed.
Gordon Macdonald and James Weatherly, for appellant.
W. M. Blakey, for appellees.
Authority for appealing from an interlocutory decree sustaining a demurrer to a bill in equity is found alone in section 427 of the Code. By that section time for taking an appeal in such case is limited to 30 days after the rendition of such decree, and no exception is made as to cases where time has been allowed for amending the bill. The appeal in this case having been taken after the lapse of 30 days from the decree sustaining the demurrer, though within 30 days after expiration of the time allowed for amendment, was unauthorized, and is therefore not within the jurisdiction of this court. Had complainant, when the demurrer was sustained, elected to stand on that ruling, and suffered the bill dismissed, the decree of dismissal would have been appealable under the 12-months statute applicable to final decrees; but the provision contained in the decree on demurrer, that "complainant has 30 days within which to amend said bill so as to give it equity, or it will stand dismissed," did not, of its own force, dismiss the bill, or determine that suit or right in respect of its subject-matter, and therefore is not a final decree. That order contains what is equivalent to a direction for a dismissal upon a contingency, and in such case a subsequent order is requisite to finally effect the dismissal. See Ex parte McLendon, 33 Ala. 276; Reese v. Billing, 9 Ala. 263; Jones' Adm'r v. Craig, 127 U.S. 213, 8 S.Ct. 1175, 32 L.Ed. 147; Phipps v. Van Cott, 4 Abb. Prac. 90; Railroad Co. v. Fosdick, 106 U.S. 69, 27 L.Ed. 47; 5 Enc. Pl. & Prac. 951, 952.
The motion to dismiss the appeal will be granted.
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Gulf Electric Co. v. Fried
...it has not been finally disposed of." This striking observation makes necessary a further consideration of our cases. In Lide v. Park, 132 Ala. 222, 31 So. 360, the authority for appealing, within the prescribed time the statute, from an interlocutory decree sustaining a demurrer to a bill ......
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Ex parte Louisville & N.R. Co.
...appealable judgment, order or decree. Kirkland v. Mills, 138 Ala. 192, 35 So. 40; Smith v. Gordon, 138 Ala. 181, 35 So. 58; Lide v. Park, 132 Ala. 222, 31 So. 360; 34 C.J. p. 54, § 182; 3 C.J. p. 1055, § Adverting to the sufficiency of judgment or order that would support an appeal, it shou......
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... ... authorities relied upon by petitioner (Blankenship v ... Hail, 214 Ala. 95, 106 So. 594; Orr v. Stewart, ... 17 Ala. App. 297, 84 So. 555; Lide v. Park, 132 Ala ... 222, 31 So. 360; Ex parte Bradshaw, 174 Ala. 243, 57 So. 16; ... Clements v. Hodgens, 210 Ala. 486, 98 So. 467) hold ... ...
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Western Electric Co. v. Pacent Reproducer Corporation
...bill "shall stand dismissed," unless an amendment be filed (Robertson v. Montgomery Baseball Ass'n, 140 Ala. 320, 37 So. 241; Lide v. Park, 132 Ala. 222, 31 So. 360), and to other decrees conditional upon some action to be taken by a party to the suit (Jones' Adm'r v. Craig, 127 U. S. 213, ......