Barnemann v. Morrison

32 So. 649, 132 Ala. 638, 1902 Ala. LEXIS 113

• Court: Supreme Court of Alabama
• Decided: June 28, 1902
• Status: Published

Opinion

HAARALSON, J.

— The case was tried by the court, a jury having been waived, — unden* the act to regulate the practice and proceedings in civil cases in Colbert and Lauderdale counties. Acts 1894-5, p. 763. The act provides, that either party may by bill of exceptions present for review the conclusions and judgments of the court on the evidence. There was no. agreement in writing signed by the parties, waiving a jury, or requesting a special finding by the court, so1 as to bring the trial under sections 3319, or 3320 of the Code.

The presiding judge made a special finding of the facts, which signed by him is set out in the bill of exceptions, at the conclusion of which he stated, “On the facts, the court is of the opinion, that the defendant did not acquire a homestead in lot 45, and that the same was* not exempt to him under the laws of Alabama. Judgment is accordingly rendered in favor of the plaintiff against the defendant for the costs of this proceeding, and the property levied on under tire execution, to-wit, part of lot 45 in the town of Tuscumbia is hereby condemned to sale.” Besides this, we find no semblance of a judgment rendered in tifie cause. It is manifest, that under our rulings, this is mot a judgment such as will support an appeal. It is nothing more than the declaration of tifie finding of the judge, and constitutes a part thereof, on which a proper judgment might have been rendered. It contains none of the elements of a final adjudication of tifie matter tried, and was probably not so intended. However that may be, it cannot be so treated on appeal.—Bell v. Otts, 101 Ala. 187; Wright v. State, 103 Ala. 95; Mercantile Co. v. O’Bear, 112 Ala. 247.

Appeal dismissed.