Meyers v. Martinez
| Decision Date | 30 June 1909 |
| Parties | MEYERS ET AL. v. MARTINEZ ET AL. |
| Court | Alabama Supreme Court |
Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.
Action between Elizabeth D. Meyers and others and Mary J. Martinez and others. From a decree overruling a motion to dismiss the bill, Meyers and others appeal. Appeal dismissed.
Fitts & Leigh, for appellants.
Brooks & Stoutz, for appellees.
A motion was made in the lower court to dismiss the bill for want of jurisdiction appearing on the face of the bill. The motion was overruled, and from that order this appeal is attempted.
It is insisted by appellant that this is a plea to the jurisdiction, and that the order overruling the motion is a decree on the sufficiency of the plea, and will therefore support an appeal. This cannot be. A plea must deny or confess and avoid. The motion does neither. It was not set down for hearing on its sufficiency, and could not have been so set down, because it averred no facts to avoid, and did not deny any part of the bill. It is not a motion to dismiss for want of equity. The equity of the bill is not denied. The motion only denies the jurisdiction of the parties. There is no decree on demurrers. The order overruling the motion will not support an appeal.
The question of a judgment or decree in the lower court which will support an appeal is jurisdictional in this court, and cannot be waived, though all parties consent to and insist upon consideration and review in this court. We see no merit in the motion, but we cannot, and do not, so decide.
Appeal is dismissed.
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State v. Grayson
... ... 522, 93 So. 427; State ex rel. Wright ... v Kemp, 205 Ala. 201, 87 So. 836; Wise v ... Spears, 200 Ala. 695, 76 So. 869; Meyers v ... Martinez, 162 Ala. 562, 50 So. 351; Eslava v ... Jones, 79 Ala. 287. In Jemison v. Town of Fort ... Deposit, 214 Ala. 471, 108 So ... ...
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Gray v. State ex rel. Atty. Gen.
...even if the parties waive it, and consent in writing for a hearing on the merits. This cannot be waived by the parties. Meyers v. Martinez, 162 Ala. 562, 50 South. 351; sections 2837, 2838, Code 1907.' (Tit. 7, §§ 754, Since the appeal in the instant case was not taken within the statutory ......
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Kerns v. Washington Water Power Co.
...353, 42 So. 545; Valdosta Mercantile Co. v. White, 52 Fla. 453, 42 So. 633; Williams v. Finlayson, 49 Fla. 264, 39 So. 50; Meyers v. Martinez, 162 Ala. 562, 50 So. 351; Shumaker v. Davidson, 116 Iowa 569, 87 N.W. Vance Shoe Co. v. Haught, 41 W.Va. 275, 23 S.E. 553; Atlantic Refining Co. v. ......
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Colbert County v. Tennessee Valley Bank
...1932. It is decided that the taking of an appeal within the time is jurisdictional and cannot be waived by the parties. Meyers v. Martinez, 162 Ala. 562, 50 So. 351; Boshell v. Phillips, 207 Ala. 628, 93 So. Lewis v. Martin, 210 Ala. 401, 98 So. 635; Lowry v. Hill, 211 Ala. 645, 101 So. 586......