Davison v. Stutts

172 So. 600, 233 Ala. 491, 1937 Ala. LEXIS 54

Opinion

BOULDIN, Justice.

Where, because of adverse rulings, it becomes necessary for plaintiff to suffer a nonsuit, an appeal to review such rulings under Code, § 6431, is from the judgment of nonsuit, entered by the court at the instance ■ of plaintiff, a judgment to the effect that defendant go hence, etc., putting the case out of court. Alston v. Marengo County Board of Education et al., 224 Ala. 676, 141 So. 658; Wood, use, etc., v. Coman et al., 56 Ala. 283; Smith v. Louisville & N. R. Co., 208 Ala. 440, 94 So. 489.

In this cause the record shows no judgment. The bill of exceptions recites that upon a ruling of the court sustaining a demurrer to plaintiff’s replication to defendants’ plea No. 2, “the plaintiff then and there in open court announced that because of said adverse ruling he would plead no further but would suffer a nonsuit with a bill of exceptions.”

Clearly this is not a judgment, but merely an announcement or motion on which a proper judgment should have been rendered.

In the absence of a judgment to support an appeal, the appellate court is without jurisdiction, and the appeal must be dismissed.

Appeal dismissed.

ANDERSON, C. J., and GARDNER, and FOSTER, JJ., concur.