Opinion
3 Div. 294.
May 25, 1939.
Appeal from Circuit Court, Autauga County; Arthur Glover, Judge.
Gipson Gipson, of Prattville, and Reese Reese, of Selma, for appellants.
The party for whose benefit a reference is made must cause such matter to be presented to the register within the time limited for the hearing, and if no time is limited, within three months after the reference is made. Code 1923, § 6594. And when the party for whose benefit reference is made fails to have the matter presented to the register within the time limited by statute, the judge may in his discretion dismiss the bill. Smith v. Smith, 132 Ala. 138, 31 So. 359; McGrath v. Stein, 148 Ala. 370, 42 So. 454. A legal or judicial discretion vested in a court does not imply an arbitrary volition to act as the expediency or propriety of the case may seem to demand; but such discretion is to be exercised in conformity with the spirit of the law according to the statutes and decisions of the courts. Such discretion is abused when exercised for the purpose of giving effect to the will of the judge, and not for the purpose of giving effect to the will of the legislature. Ex parte Chase, 43 Ala. 303; Moon's Adm'r v. Crowder, 72 Ala. 79; Nash v. Fries, 129 Wis. 120, 108 N.W. 210; United States v. Meldrum, D.C., 146 F. 390.
Douglas Booth, of Prattville, for appellee.
The decree appealed from is not a final one from which an appeal is authorized by statute, nor is it such an interlocutory decree as will support an appeal. McKleroy v. Gadsden Land Imp. Co., 126 Ala. 184, 28 So. 660; Nabers v. Morris Min. Co., 103 Ala. 543, 15 So. 850; Johnson v. Westinghouse, Church, Kerr Co., 209 Ala. 672, 96 So. 884; Martin v. Alabama Power Co., 208 Ala. 212, 94 So. 76; Code 1923, § 6078. The decree overruling motion to dismiss the cause was not a final decree, did not settle the merits, and was not a final adjudication of the matter in controversy and could not be appealed from as the case is still pending in the lower court. Lathrop Lumber Co. v. Pioneer Lumber Co., 207 Ala. 522, 93 So. 427; Osborn v. Robertson T. A. Co., 15 Ala. App. 358, 73 So. 229; Hayes v. Hayes, 192 Ala. 280, 68 So. 351. Matters resting entirely in the discretion of the trial court are not reviewable on appeal. Beecher v. Henderson, 4 Ala. App. 543, 58 So. 805; Ex parte Jonas, 186 Ala. 567, 64 So. 960. Whether the cause should be dismissed was within the discretion of the trial court. Smith v. Smith, 132 Ala. 138, 31 So. 359; McGrath v. Stein, 148 Ala. 370, 42 So. 454.
The appeal is from a decree overruling a motion to dismiss the cause for want of prosecution.
The motion made and notice thereof given was to the effect that the same would be heard on March 28, 1939, and a decree overruling the motion was dated March 30, 1939.
This appeal challenges the action of the trial court in overruling the motion to dismiss the suit in question.
It should be said that the decree granting the relief prayed for in the bill and ordering a reference before the register was dated August 12, 1937. A motion to set aside the same was made, continued and set for hearing on September 17th, 1937. On February 3, 1938, appellants appealed from that decree, which appeal was affirmed by this court and rehearing thereon denied. Huie et al. v. Smith, 236 Ala. 516, 183 So. 661. It is thus apparent that the cause is pending in the lower court, the merits thereof not having been fully determined.
It is necessary that a decree from which appeal is prosecuted be final in order to support an appeal under the statutes and our decisions. Michie's Code, § 6078; De Graffenried v. Breitling, 192 Ala. 254, 68 So. 265; for final decree. Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939; Webb v. French, 225 Ala. 617, 144 So. 818; State ex rel. Garrow et al. v. Grayson, 220 Ala. 12, 123 So. 573.
In Lathrop Lumber Co. v. Pioneer Lumber Co., 207 Ala. 522, 93 So. 427, the court indicated the fact that a decree merely overruling a motion to dismiss the cause is not final, in that it did not settle the merits of the cause and fix the rights and liabilities of the parties; that such a decree did not give jurisdiction in this court or support an appeal, taken from such ruling. The many cases touching the subject are cited in State ex rel. Garrow et al. v. Grayson, supra. To like effect are Martin v. Alabama Power Co., 208 Ala. 212, 94 So. 76; Johnson v. Westinghouse, Church, Kerr Co., 209 Ala. 672, 96 So. 884; Osborn v. Robertson Tire Auto Co., 15 Ala. App. 358, 73 So. 229.
We may again observe that the cause was not submitted for final decree on the merits as may be presented to the court on such final hearing and report, and thus the cause is pending in the lower court. It is still within the exercise of the discretion of the lower court to re-order a reference by the register (the former date having passed) and there is no rule of law to prohibit the court's right to exercise in the behalf indicated or invoked. Code, § 6594; Chancery Rules, § 887-94; McGrath et al. v. Stein et al., 148 Ala. 370, 42 So. 454; Smith v. Smith, 132 Ala. 138, 31 So. 359; Standard Oil Co. v. State, 207 Ala. 303, 92 So. 894.
It follows that the motion to dismiss the appeal is well taken and such is the order.
Appeal dismissed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.