Thomas v. Thomas

• Decision Date: 18 March 1926
• Docket Number: 8 Div. 838
• Citation: 214 Ala. 293,107 So. 810
• Parties: THOMAS et al v. THOMAS et al.
• Court: Alabama Supreme Court

107 So. 810

214 Ala. 293

THOMAS et al v. THOMAS et al.

8 Div. 838

Supreme Court of Alabama

March 18, 1926

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Bill in equity by S.W. Thomas and others against W.S. Thomas and others. From the decree, complainants appeal. Appeal dismissed.

Appeal from decree overruling motion to set aside decree sustaining demurrers to bill held unauthorized (Code 1923, §§ 6078, 6079, 6081, 6082).

Where Supreme Court is unauthorized by statute to take jurisdiction of appeal, appeal will be dismissed by the court ex mero motu.

Milo Moody, of Scottsboro, for appellants.

John B Tally and Proctor & Shodgrass, all of Scottsboro, for appellees.

MILLER J.

This is a bill in equity filed by S.W. Thomas and others against W.S Thomas and others. The bill was amended. Jennie Derrick and another respondent demurred to the bill as amended. The court, by decree rendered on August 5, 1925, sustained the demurrers to the bill as amended. The complainants, on August 19, 1925, filed motion to set aside that decree and grant them a rehearing. The court by decree overruled this motion for a rehearing on December 3, 1925. The complainants appealed from the decree rendered December 3, 1925, by giving security for the cost of the appeal, which was approved December 31, 1925.

An appeal lies to this court from a decree rendered by the circuit court in equity sustaining a demurrer to the bill of complaint, if taken within 30 days from the rendition thereof. Section 6079, Code 1923. No appeal from the decree rendered August 5, 1925, sustaining demurrers to the bill of complaint was taken by the complainants at any time. The appeal was taken on December 31, 1925, from the "decree rendered on the ______ day of December, 1925." There was only one decree rendered in December, 1925. That was on December 3, 1925, which overruled the motion of complainants to set aside the decree sustaining demurrers to the bill of complaint as amended. No appeal is authorized by statute to this court from a decree overruling a motion to set aside a decree sustaining demurrers to a bill of complaint as originally filed or as amended. Sections 6079, 6078, 6081, 6082, Code of 1923.

This court is without jurisdiction to entertain this appeal because no statute authorizes it, and without authority by statute this court cannot take jurisdiction of it. So this appeal will be and is dismissed by this court ex mero motu. Clark v. Spencer, 80 Ala. 345; Worthington v Morris, 102 So. 620,...