Shields v. Hightower

• Decision Date: 07 April 1927
• Docket Number: 913,8 Div. 912
• Citation: 112 So. 834,216 Ala. 224
• Parties: SHIELDS v. HIGHTOWER et al. YARBROUGH v. SAME.
• Court: Alabama Supreme Court

112 So. 834

216 Ala. 224

SHIELDS v. HIGHTOWER et al.

YARBROUGH v. SAME.

8 Div. 912, 913

Supreme Court of Alabama

April 7, 1927

Rehearing Denied May 19, 1927

Appeal from Circuit Court, Limestone County; O. Kyle, Judge.

Bill in equity by L.C. Hightower and others against E.C. Robinson and others, in which John W. Shields, C.A. Yarbrough, and C. Pepper, Sr., filed cross-bills. From a decree on demurrers to their cross-bills, cross-complainants John W. Shields and C.A. Yarbrough severally appeal and apply for mandamus. Appeal dismissed; mandamus denied.

E.W Godbey, of Decatur, for appellants.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellees.

BOULDIN J.

The original bill was filed by sureties on the official bond of a tax collector to enforce, by way of subrogation, the lien of the state and county on the lands owned by the principal during his incumbency in office, to reimburse sureties for amounts paid by reason of the default of the principal. The respondents are the principal and vendees and subvendees of such lands.

The equity of the bill was sustained by this court on appeal from decree on demurrer. Yarbrough v. Hightower, 211 Ala 262, 100 So. 126.

The present appellants, subvendees, filed a cross-bill to which complainants interposed demurrers. The decree on these demurrers was reviewed by this court in Shields v. Hightower, 214 Ala. 608, 108 So. 525, 47 A.L.R. 506.

The nature of the cross-bill and the questions presented and decided on that appeal are best gathered from the decision. Suffice to say here the equity of the cross-bill was upheld by this court, and cross-complainants held entitled to substantial relief sought under several features of the cross-bill, while right to relief under other phases of the cross-bill was denied.

After the cause was remanded, cross-complainants amended their cross-bill by additional averments and prayer and bringing in new parties to the cross-bill. Demurrers were interposed by complainants to the cross-bill as amended.

The court, in decree on demurrer, followed the decision of this court on former appeal. From this decree, the present appeal is taken.

Appellees move to dismiss the appeal, because prosecuted in contravention of the Act of September 7, 1923 (Code, § 6080). This section reads:

'Whenever the equity of a bill, complaint or petition has been tested and upheld by the supreme court on an appeal from any interlocutory order, judgment, or decree, no other appeal can be taken from any subsequent interlocutory order, judgment or decree; but the rulings of the trial court on any such interlocutory orders, judgments or decrees may be reviewed by the Supreme Court on appeal from the final judgment or decree."

The case presents, we believe, for the first time, this statute for construction. The right of appeal from an interlocutory decree is wholly statutory. Appeal from decree on demurrer to a bill in equity dates back to 1875. Code of 1876, § 3918. Appeal from a decree on demurrer to a cross-bill was not allowed until the Act of March 17, 1915 (Acts of 1915, p. 137).

The aim of such statute is to settle the law of the case. This may end the litigation. If not, it defines the issues to be further litigated. The legislative policy is to promote the administration of justice with least delay and expense.

Section 6080 clearly strikes at the evil of repeated appeals from decrees on demurrer to original or amended bills, a fruitful source of the law's delays. It is...