Opinion
1 Div. 396.
December 14, 1920.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
Application for mandamus by Julius S. Du Courneau, as Humane Officer of the County of Mobile, against the Board of Commissioners of the City of Mobile, to compel payment of an account. From an order or judgment sustaining demurrers to the petition, petitioner appeals. Appeal dismissed.
Frederick G. Bromberg, of Mobile, and C.P. McIntyre, of Montgomery, for appellant.
Counsel cite authority in support of their contention that mandamus is the proper remedy, and that the Act of August 23, 1919, is constitutional, but they do not discuss the point decided.
Frank J. Yerger, of Mobile, for appellee.
The judgment in this case is not such a final judgment as will support an appeal. Sections 2843 and 4866, Code 1907; 79 So. 146; 80 Ala. 357.
The judgment from which the appeal is taken is as follows:
"April 17th, 1920. This day came the parties by their attorneys, and defendant's eleventh and twelfth grounds of demurrers filed April 15, 1920, to the petition, coming on to be heard and being argued by counsel and understood by the court, it is therefore ordered and adjudged by the court that defendant's eleventh and twelfth grounds of demurrers filed April 15, 1920, to the petition be, and the same are hereby, sustained."
This is not such a judgment as will support an appeal in mandamus proceedings. Code 1907, §§ 4866, 2843; State ex rel. Price v. Callaway, 16 Ala. App. 472, 79 So. 146.
There being no final judgment on the proceedings in the court below, this court is without jurisdiction to proceed, and therefore the appeal is dismissed.
Appeal dismissed.