Scholes v. Kibbe

• Decision Date: 12 March 1931
• Docket Number: 775-A.,6 Div. 775
• Parties: SCHOLES ET AL. v. KIBBE.
• Court: Alabama Supreme Court

133 So. 286

222 Ala. 587

SCHOLES ET AL. v. KIBBE.

6 Div. 775, 775-A.

Supreme Court of Alabama

March 12, 1931

Rehearing Denied April 9, 1931.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill by James L. Kibbe against Andrew J. Scholes and James P Scholes, as administrators with the will annexed of James Scholes, deceased, and Margaret T. Chambers. From the decree respondents appeal, and complainant cross-assigns error.

Affirmed.

See also, 219 Ala. 571, 123 So. 61.

W. P McCrossin and Theodore J. Lamar, both of Birmingham, for appellants.

H. A. Entrekin and E. C. Crow, both of Birmingham, for appellee.

THOMAS J.

The report of Kibbe v. Scholes, 219 Ala. 571, 123 So. 61, decides the questions presented on the pleadings. The submission is on motion to dismiss this appeal, and on the merits.

Appellants' brief refers to the "decree of reference" rendered by the lower court in this cause, which, it is insisted, shows on its face that it is not a final decree, but interlocutory, in that it does not determine all the equities between the parties to the suit; that it is referred to the special master to ascertain what amount of money should the complainant in equity and good conscience be required to pay into this court for the use and benefit of the heirs at law of James Scholes, deceased; that the names and ages at the time of making his report of the heirs at law of James Scholes, deceased, be ascertained; and the decree further stipulates that this cause is retained for such orders and decrees as may be necessary upon the coming in of the special master's report.

For these reasons it is urged that it is not a decree from which an appeal will lie to this court. The same was not taken within thirty days from the rendition thereof, section 6079, Code; the decree was rendered on the 12th day of September, 1930, and security for costs of appeal was taken and approved on the 18th day of October, 1930. Hence it is moved that the appeal should be dismissed.

It is apparent that, in the respects indicated, it was an interlocutory order, and the appeal was not taken within thirty days from rendition thereof.

The timely appeal is a jurisdictional fact (Minge v. Smith, 206 Ala. 330, 89 So. 473; Blackburn v. Huber Mfg. Co., 135 Ala. 598, 33 So. 160), and will be taken by the court ex mero motu (City of Troy v. Murphree, 214 Ala. 118, 107 So. 83; Devane v. Smith, 216 Ala. 177, 112 So. 837).

It is pointed out by Mr. Sims that the two definitions of Mr. Daniels (2 Daniels Ch. Pr. 1192) as to final and interlocutory decrees are not, in all respects, in accord with our decisions (Sims Ch. Pr. p. 317, note 4); that decrees may be partly interlocutory and partly final ( Cochran et al. v. Miller, 74 Ala. 50; Adams v. Sayre, 76 Ala. 509, 517; Malone & Foote v. Marriott, 64 Ala. 486; De Graffenried v. Breitling, 192 Ala. 254, 68 So. 265).

The court had determined in the decree the rights and equities of the parties, saying: "Upon consideration thereof the Court is of the opinion that the complainant is entitled to relief, but the Court is unable to determine upon the submission what amount of money the complainant in equity and good conscience owes as a condition precedent to having this Court vest in him the title to the real estate described in the lease sale contract exhibited in this cause and also described in the bill of complaint as last amended; nor is the Court...