Opinion
5 Div. 34.
March 22, 1938.
Appeal from Circuit Court, Randolph County; W. B. Bowling, Judge.
Prosecution by the City of Roanoke against A. E. Fain, for violation of a city ordinance. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.
Appeal dismissed.
Paul J. Hooton, of Roanoke, for appellant.
Where the validity of an ordinance is involved, the municipality may appeal from the judgment, Code 1923, § 1943.
E. B. Parker, of Roanoke, for appellee.
The judgment merely sustaining demurrer to the complaint will not support an appeal. Wise v. Spears, 200 Ala. 695, 76 So. 869; Gibbs v. Southern Exp. Co., 201 Ala. 506, 78 So. 860; Meyers v. Martinez, 162 Ala. 562, 50 So. 351. The demurrer contained grounds raising the validity of the ordinance and grounds which did not relate to that question. The demurrer as a whole was sustained, and the municipality is without right to appeal. Code 1923, § 1943; Birmingham v. Ridgeway, 164 Ala. 598, 51 So. 303.
The appeal in this case was improvidently taken, and must be dismissed, for that no sufficient judgment or order has been made in the circuit court to sustain an appeal.
The only judgment found in this record is an order of the court sustaining defendant's demurrer to plaintiff's complaint. "A judgment sustaining a demurrer to the complaint is not a final judgment from which an appeal will lie." Wise v. Spears, 200 Ala. 695, 76 So. 869; Gibbs v. Southern Express Company, 201 Ala. 506, 78 So. 860; Eslava v. Jones, 79 Ala. 287, 288.
Appeal dismissed.