Meyers v. Martinez

• Decision Date: 30 June 1909
• Citation: Meyers v. Martinez, 162 Ala. 562, 50 So. 351 (Ala. 1909)
• Parties: MEYERS ET AL. v. MARTINEZ ET AL.
• Court: Alabama Supreme Court

50 So. 351

162 Ala. 562

MEYERS ET AL. v. MARTINEZ ET AL.

Supreme Court of Alabama

June 30, 1909

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 &amp Leigh, for appellants.

Brooks & Stoutz, for appellees.

MAYFIELD J.

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...