Sicard v. Ingalls

• Decision Date: 13 May 1948
• Docket Number: 6 Div. 598-599.
• Citation: 35 So.2d 342,250 Ala. 585
• Parties: SICARD et al. v. INGALLS.
• Court: Alabama Supreme Court

35 So.2d 342

250 Ala. 585

SICARD et al. v. INGALLS.

6 Div. 598-599.

Supreme Court of Alabama

May 13, 1948

Boutwell, Pointer & Hawkins, of Birmingham, for appellant sicard.

Hiram Dodd, of Birmingham, for appellant Dickey.

Lange Simpson, Robinson & Somerville, of Birmingham, for appellee.

LIVINGSTON Justice.

This is a second appeal in this cause.--Elmore v. Ingalls, 245 Ala 481, 17 So.2d 674.

After the cause was remanded, the bill was amended by adding appellants Paul Sicard, C. E. Dickey, and others, as additional parties respondent. On former appeal the bill of complaint, omitting its formal parts and prayer for relief was set out in the opinion rendered by this Court, where we held that the bill was not subject to the demurrer interposed. By reference to that opinion the amendments made after the cause was remanded can be readily understood.

The bill was amended so as to charge these appellants (Sicard and Dickey) as among those 'whose operations each contributed directly and proximately to the damage of complainant's property and to the damage of complainant as hereinafter shown.' Each of them is there described as being engaged in the mining and production of coal in the water shed above complainant's property.

Paragraph seven of the original bill was amended by substituting the words 'operating respondents' wherever the words 'respondent or respondents' appeared. While other respondents were added and designated as 'landowning respondents,' who may have merely permitted others to pollute the stream, appellants Sicard and Dickey are both charged with operating mines (Sicard on his own property), and thereby directly contributing to the pollution of the stream. We are not here concerned with the other respondents.

The bill was further amended by adding paragraph seven and one-half, which reads as follows:

'That the landowning respondents have themselves operated mines on their own property or have contracted by lease or otherwise with other persons to operate mines on their lands aforesaid, and in and about said oprations and as a direct and proximate consequence thereof, all the injuries and damages are inflicted on complainant's land and on complainant as are enumerated in paragraphs 7 and 8 of the original bill.'

Appellants separately demurred to the bill as amended. Each demurrer was overruled, and respondents Sicard and Dickey appealed. The two appeals were consolidated and submitted to this Court. The appeals were submitted on the merits and appellee's motion to dismiss the appeal.

Appellee's motion to dismiss is grounded on section 756, Title 7, Code, which reads as follows:

'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 right to appeal from an interlocutory decree overruling demurrer to the bill is statutory.

In the case of Shields v. Hightower et al., 216 Ala. 224, 112 So. 834, 835, we said:

'Section 6080 [Code 1940, Tit. 7, § 756] 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 in addition to the rule of practice relating to appeals for delay.

'We give full effect to the general terms of the statute. Accordingly, we hold that, when the substantial equity of the bill is upheld on appeal from decree on demurrer, no further appeal can be prosecuted from a later interlocutory decree on demurrer to the bill. This includes a demurrer raising new objections to the original bill and demurrer to amended bill whether the amendment relates to matters already in the bill...