Opinion
4 Div. 698.
March 26, 1953.
Appeal from the Circuit Court, Russell County, Julius B. Hicks, J.
Robert B. Stewart, Montgomery, for appellant.
Roy L. Smith and Smith Smith, Phenix City, for appellee.
Appeal from decree on demurrer to bill must be taken within 30 days. If taken after statutory period the appeal must be dismissed, the court being without jurisdiction. Code 1940, Tit. 7, § 755; Irwin v. Weil, 228 Ala. 489, 153 So. 746; Snider v. Funderburk, 209 Ala. 663, 96 So. 928; Colbert County v. Tenn. Valley Bank, 225 Ala. 632, 144 So. 803.
This is an appeal from a decree of the equity court sustaining demurrers of the respondent to the bill of complaint. The bill of complaint was filed by Tommie Key Williams as next friend of James Boykin Key and is a proceeding in the nature of a bill of review, seeking to set aside a judgment previously rendered against James Boykin Key. The respondent filed a motion to dissolve the injunction which had been granted by the court and in support of the motion offered demurrers to the bill and the sworn answer of the respondent. Upon the hearing of the motion to dissolve the injunction the complainant amended her bill and the respondent filed additional grounds of demurrer and refiled the original grounds of demurrer as amended. The decree of the equity court sustaining the demurrers filed by the respondent to the complainant's bill of complaint and dissolving the injunction, was entered and filed on the 14th day of May, 1952. An appeal was taken to this court on the 14th day of June, 1952. The only assignment of error made here is that the court erred in sustaining the respondent's demurrer to the bill of complaint as amended and this ruling of the court is the only action of the court which is urged here as error.
Section 755, Title 7, Code of 1940, provides that from any decree by the circuit court, in equity, sustaining or overruling a demurrer to a bill in equity, an appeal from such decree shall be taken within thirty days from the rendition thereof. It is obvious that the appeal in the present case was taken more than 30 days after the decree was rendered. Accordingly, the appeal was taken too late and we have no jurisdiction to consider it. It must be dismissed. Sni fileder v. Funderburk, 209 Ala. 663, 96 So. 928; Colbert County v. Tennessee Valley Bank, 225 Ala. 632, 144 So. 803; Irwin v. Weil, 228 Ala. 489, 153 So. 746.
Appeal dismissed.
LAWSON, STAKELY, GOODWYN and MERRILL, JJ., concur.