Opinion
8 Div. 829.
March 22, 1956.
Appeal from the County Court, Morgan County, W. H. Long, J.
W. L. Chenault, Decatur, for appellants.
Allowance of the amendment to the bill was erroneous, and motion to dismiss the bill as amended should have been sustained. If the decree overruling the motion to dismiss be not subject to revision on appeal, mandamus is the appropriate remedy.
John Patterson, Atty. Gen., and Paul T. Gish, Asst. Atty. Gen., for appellee.
Decree overruling motion to dismiss bill of complaint is not a final decree and is not appealable. Huie v. Smith, 238 Ala. 81, 189 So. 729; Hayes v. Hayes, 192 Ala. 280, 68 So. 351; Bell v. King, 210 Ala. 557, 98 So. 796; De Graffenried v. Breitling, 192 Ala. 254, 68 So. 265; Bentley v. Knox, 258 Ala. 377, 62 So.2d 921; Couch v. Rodgers, 257 Ala. 560, 59 So.2d 809. Petition for mandamus must be presented on transcript paper in accordance with Rule 32, Revised Rules of the Supreme Court. 261 Ala. XXXI; Ex parte Wood, 215 Ala. 280, 110 So. 409; Aust v. Sumter Farm Stock Co., 209 Ala. 669, 96 So. 872; Barnett v. Patillo, 251 Ala. 1, 36 So.2d 451; Nix v. State, 251 Ala. 1, 36 So.2d 456; Bates v. General Steel Tank Co., 256 Ala. 466, 55 So.2d 218; Duckett v. State, 257 Ala. 589, 60 So.2d 357.
The motion of appellee to dismiss the appeal must prevail. The decree overruling appellants' motion to dismiss the complaint as amended is not such a final decree as will support an appeal. Huie v. Smith, 238 Ala. 81, 189 So. 729. Nor is it within the influence of the provisions now codified as § 755, Title 7, Code 1940, authorizing appeals from certain interlocutory decrees.
There was filed in the cause a motion seeking a writ of mandamus in the event an appeal be held inappropriate. This motion is not presented to this court on transcript paper so that the same may be in suitable form for binding, and Rule 32, Revised Rules of the Supreme Court, 261 Ala. XXXI, expressly provides that "no application shall be heard that is not so presented." Aust v. Sumter Farm Stock Co., 209 Ala. 669, 96 So. 872. We do not mean to indicate, however, that had the motion been in proper form the writ of mandamus would have issued. In Ex parte South North Alabama R. Co., 65 Ala. 599, it was held in effect that if a trial court improperly allows an amendment to a complaint, such action is revisable on appeal from a final decree and hence is not a good ground for mandamus.
Let the appeal be dismissed and the writ be denied.
Appeal dismissed and writ denied.
LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., concur.