Pepper v. Horn

• Decision Date: 23 November 1916
• Docket Number: 2 Div. 629
• Citation: 197 Ala. 395,73 So. 46
• Parties: PEPPER v. HORN et al.
• Court: Alabama Supreme Court

73 So. 46

197 Ala. 395

PEPPER v. HORN et al.

2 Div. 629

Supreme Court of Alabama

November 23, 1916

Appeal from Chancery Court, Sumter County; Thomas H. Smith Chancellor.

Bill by Perry B. Pepper against Alex G. Horn and another, for specific performance. Decree sustaining demurrer to the amended bill and complainant appeals. Affirmed.

Thomas F. Seale, of Livingston, and Foster, Verner & Rice, of Tuscaloosa, for appellant.

Patton & Patton, of Livingston, for appellees.

McCLELLAN J.

This bill, original and as amended, sought the specific performance of a contract to convey a town lot in York Sumpter county. The certificate of appeal recites that, on March 28, 1916, the complainant, Pepper, took an appeal from two decrees, sustaining demurrers to the bill. The first decree, entered November 29, 1915, adjudged the original bill to be subject to the demurrer. On December 15, 1915, after the ruling on the demurrer, the complainant materially amended his bill; and, in response to demurrer addressed to the amended bill, the chancellor held it to be subject to grounds 5 to 21, inclusive, of the demurrer. The appellee moves the court to strike the first assignment of error which would bring under review the ruling of the court, made November 29, 1915, sustaining the demurrer to the original bill. The ground of the motion to strike the first assignment of error is that the appeal to effect the review of this ruling was not taken within 30 days, as required by the act approved March 17, 1915 (Gen.Acts 1915, p. 137). That act reads:

"That section 2838 of the Code is amended so as to read as follows: 2838--Appeals from Certain Interlocutory Decrees. From any decree rendered by the chancery court in term time, or by the chancellor in vacation, or by the county courts of law and equity in term time, or by the judge of such, sustaining or overruling a demurrer to a bill in equity or to a cross-bill, an appeal lies from such decree, to be taken within thirty days from the rendition thereof, to the Supreme Court. Such appeal shall be heard and determined by the Supreme Court in preference to all other appeals except appeals in criminal cases; and if the decree is reversed, the court shall render such decree as should have been rendered by the court, chancellor or judge below; but nothing in this section shall prevent an assignment of errors on such decrees on appeals taken on the final determination of the cause, if no appeal is taken under this section."

The motion to strike the assignment of error is well taken, and must be granted unless the quoted act was repealed by the act (section 1) approved September 27, 1915 (Gen.Acts 1915, p. 711). So far as presently pertinent, the act approved September 22, 1915, provides:

"That any appeal taken under the provisions of chapter fifty-three (53) of the Code of 1907 must be taken within six months from the rendition of the judgment or decree. *** "

Section 2838 of the Code of 1907, amended by the act approved March 17, 1915 (quoted before), is a part of chapter 53 to which express reference is made in the act approved September 22, 1915, in part reproduced above.

The repeal asserted is by implication only of the act of March 17, 1915, and that as effected by a law subsequently enacted by the same Legislature. Consistent with previous adjudications here, it was well said in City of Birmingham v. Southern Express Co., 164 Ala. 529, 538, 539, 51 So. 159, 163:

"Special provisions relating to specific subjects control general provisions relating to general subjects. The things specially treated will be considered as exceptions to the general provisions. When a specific subject has been specially provided for by law, it will not be considered as repealed by a subsequent law which deals with a general subject in a general way, though the specific subject and the special provisions may be included in the general subject and general provisions."

To the same effect is Parker v. Hubbard, 64 Ala. 203; City Council, etc., v. Nat. B. & L. Asso., 108 Ala 336, 18 So. 816; Lee v. State, 143 Ala. 93, 39 So. 366. The act approved March 17, 1915, is special, specific in nature and effect. It governs rulings and appeals of a particular class. The later act, approved September 22, 1915, is general in its nature and effect. Its terms, descriptive of the appeals to be affected thereby, are general, and their reference is to a Code chapter that is devoted to the general subject of appeals. The rule of construction above quoted is applicable. The former specific enactment was not modified or repealed, as to the time prescribed in the former statute, by the later enactment. Both have a separate field of operation. The former enactment controls in all cases of the particular classes described in it. The appeal from the decree of November 29, 1915, sustaining the demurrer, was not taken within the 30-day period prescribed by the act of March 17, 1915. There has been no decree finally determining...