Cross v. Bank of Ensley

87 So. 845, 205 Ala. 277, 1921 Ala. LEXIS 401

Opinion

GARDNER, J.

For the litigation out of which the present appeal arises, see Cross v. Bank of Ensley, 203 Ala. 561, 84 South. 267.

After the affirmance of the decree of the court below following a foreclosure of the mortgage executed by Z. Cross and wife, and R. C. Cross and wife, separately, the latter filed an original bill, setting up matters relating to the substance of this litigation, which was this day decided.

On account of this last hill by R. C. Cross, the cross-complainants in the former litigation filed a petition to the chancellor in that cause, seeking authority to proceed with the foreclosure of the mortgage against Z. Cross as to lands not involved in the other suit, and also to authorize the procurement of an abstract of title thereto. The cross-respondents in that suit filed demurrers to this petition, which were overruled, and the petition granted. The action of the court in this particular is here sought to be reviewed upon this appeal.

[1] This order was clearly of an interlocutory nature, and we find no statute authorizing an appeal from the ruling of the court on demurrer to such petition. Section 2838, as amended Acts 1915, p. 137. Such an order will therefore not support an appeal. Bennett v. Hall, 193 Ala. 273, 69 South. 136.

[2] The said Z. Cross and R. C. Cross filed a paper in that cause, wnieh was headed “Adoption for the Cross-Bill for Petition,” and in this paper, by reference to the’ original bill filed by R. C. Cross, without copying or setting the same out, sought to have the same adopted as a cross-bid to the petition above referred to. This paper filed in the cause was stricken on motion. The same could not be called a cross-bill, and, indeed, there was no occasion for such, and the ruling thereon could not be said to come within the act of 1915, supra, and was likewise such an order as would not support the appeal.

The appeal will be dismissed.

Appeal dismissed.

All the Justices concur.