Birmingham Trust & Savings Co. v. Ansley

173 So. 378, 234 Ala. 37, 1937 Ala. LEXIS 139

• Court: Supreme Court of Alabama
• Decided: March 25, 1937
• Docket: 6 Div. 930A.
• Status: Published

Opinion

BROWN, Justice.

This appeal is from a decree of the circuit court dismissing the respondents’ motion to substitute additional grounds of demurrer, alleged to have been lost, after the hearing on demurrer.

The grounds of demurrer alleged to have been lost, sought to take the point that the bill was defective for nonjoinder of a necessary party defendant, or a necessary party . complainant. Neither of the grounds of demurrer sought to be substituted names the party not joined, and, under the repeated ruling here, are insufficient on the hearing on demurrer to present the question. Nelson et al. v. Wadsworth et al., 171 Ala. 603, 55 So. 120; Chambers, Administrator, v. Wright, 52 Ala. 444; Hall v. Holly et al., 220 Ala. 597, 127 So. 164.

The case is now in this court by appeal from the final decree, and if that decree was entered without bringing in the necessary parties, it may be raised here on that appeal. Prout v. Hoge, 57 Ala. 28; Baisden v. City of Greenville, 215 Ala. 512, 111 So. 2.

The foregoing would be sufficient ' for the denial of the motion or its dismissal, as the substitution would be of no benefit to the appellant, and therefore useless. However, there is a sharp dispute between the parties as to whether or not the grounds of demurrer proposed to be substituted were ever interposed to the bill, and we cannot affirm that the court committed error in dismissing the motion, which was tantamount to its denial. Dabney v. Mitchell, 66 Ala. 495.

Affirmed.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.