Smith v. Hart, 6 Div. 911
| Decision Date | 21 December 1956 |
| Docket Number | 6 Div. 911 |
| Citation | 91 So.2d 817,265 Ala. 465 |
| Parties | Joe Wheeler SMITH v. Maggie HART. |
| Court | Alabama Supreme Court |
Corretti & Newsom, Birmingham, for appellant.
Dempsey F. Pennington and Jos. C. Barnard, Birmingham, for appellee.
This is the second appeal in this case. Smith v. Hart, 259 Ala. 7, 65 So.2d 501.
On the former appeal the bill of complaint was substantially 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 and the amendments which we will set out in this opinion, the amended bill can be understood.
The bill was amended after affirmance by this court to include paragraph 6 which states:
'That there had been an understanding and agreement by and between this complainant and respondent Joe Wheeler Smith, prior to negotiations to purchase the property in controversy, that complainant would buy a home and that respondent Joe Wheeler Smith would live with her and would pay all expenses, including their joint support and maintenance.'
The bill was further amended to include in the prayer for relief the following:
'That in the event the Court finds, upon a final hearing of this cause, that a material part of the consideration for the execution of the said joint survivorship deed was the promise of future support and maintenance of complainant by the respondent Joe Wheeler Smith, then, in that event, this Honorable Court will set aside and hold for naught said joint survivorship deed.'
Appellant, Joe Wheeler Smith, demurred to the bill as amended. Each ground of demurrer was overruled whereupon this appeal was taken. The cause is submitted here on the merits and appellee's motion to dismiss the appeal.
Appellee's motion to dismiss is grounded on Section 756, Title 7 Code 1940, 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 an 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, 216 Ala. 224, 112 So. 834, 835, we said:
'Section 6080 [Code 1940, Title 7, Section 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 or new matter.
'In other words, when it is declared by a decision of this court that the bill of complaint presents a case for equitable relief, either party is entitled to have it litigated without awaiting a decision on another appeal touching matters which may not have been raised on former appeal or have been brought in under our liberal system of amendments. As to all this, the party is protected by assignment of errors thereon after final decree, when this Court must consider all questions without regard to the former decision.
'The equity of the bill is upheld, within the meaning of this statute, when it is held good as to substantial relief sought, although in the same decision some features of the bill are held subject to the demurrer.
"A bill' is used in the generic sense, meaning original bill, amended bill, cross-bill, or amended cross-bill, any bill whose equity may be tested by appeal from decree on demurrer under Code § 6079.' (Brackets added.)
The rule as stated in the case of Shields v. Hightower, supra, has been followed in the cases of Sicard v. Ingalls, 250 Ala. 585, 35 So.2d 342; Thomasson v. Benson Hardware Co., 224 Ala. 11, 138 So. 287; Brasher v. Grayson, 219 Ala. 631, 122 So. 881; Allen v. Young, 218 Ala. 82, 117 So. 641; Alabama Water Service Co. v. City of Anniston, 217 Ala. 271, 116 So. 124.
While the case of Shields v. Hightower, supra, has been followed in most cases, the following decisions hold that a second appeal may be taken from a decree overruling demurrers where the bill is amended to such an extent that the equity of the amended bill was not upheld on the first appeal. First National Bank of Opp v. Wise, 238 Ala. 686, 193 So. 131; Thomas v. Skeggs, 218 Ala. 562, 119 So. 610.
In the case of First National Bank of Opp v. Wise, supra, the original bill was brought by the widow and heirs at law of P. T. Wise abainst the First National Bank of Opp. The original bill alleged that the deceased (P. T. Wise) had mortgaged certain land and personal property to secure...
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Cloud v. Gamble, 4 Div. 933
...bill and demurrer to amended bill, whether the amendment relate to matters already in the bill or new matter.' See, also, Smith v. Hart, 265 Ala. 465, 91 So.2d 817, and cases there The statute applies to a ruling on demurrer to an amendment to a bill after its equity has been upheld on appe......