Opinion
8 Div. 255.
March 12, 1931.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
W. H. Long, of Decatur, for appellants.
The decree dismissing the bill was rendered, on respondent's motion, prior to the expiration of the time for perfecting appeal from the decree sustaining the demurrer. The appeal was perfected within the time allowed, and complainant's rights should not be defeated by the proceeding on the part of respondent.
Julian Harris and A. J. Harris, both of Decatur, for appellee.
If a demurrer is sustained and the bill is not by the decree dismissed, an appeal may be taken within the time allowed by the court for an amendment, not exceeding 30 days. Having suffered the bill to be dismissed, complainant's remedy was to appeal from the decree of dismissal, which was final. Schwarz v. Barley, 142 Ala. 442, 38 So. 119; Lide v. Park, 132 Ala. 223, 31 So. 360; Code 1923, § 6079.
This appeal was taken from a decree rendered October the 3d, 1930, sustaining a demurrer to appellants' bill of complaint. In the meantime, October the 25th 1930, the trial court rendered a final decree dismissing the bill, and the appeal was not taken until after the rendition of said final decree. This being the case, the appeal should have been taken from said final decree under section 6078 and not from the interlocutory decree, as governed by section 6079 of the Code of 1923. Schwarz v. Barley, 142 Ala. 439, 38 So. 119. Had the appeal been taken from the final decree, the decree upon the demurrer could be reviewed, section 6079, but after a final decree was rendered, and before the appellants appealed under section 6079, they had no right to appeal under said last section. It would be anomalous to reverse the decree on the demurrer and leave in full force and effect the final decree dismissing the bill, as no appeal was taken therefrom, and the action of the trial court in that respect cannot be reviewed upon the present appeal.
The motion to dismiss must be sustained, and the appeal is accordingly dismissed.
Appeal dismissed.
SAYRE, THOMAS, and BROWN, JJ., concur.