Hale v. Kirby

122 So. 2d 919, 271 Ala. 289, 1960 Ala. LEXIS 449

• Court: Supreme Court of Alabama
• Decided: June 30, 1960
• Docket: 6 Div. 344
• Status: Published

Opinion

COLEMAN, Justice.

Appellant filed a bill of complaint in the Circuit Court of Jefferson County, in Equity. The bill prayed for a decree setting aside a prior decree of said court. Numerous pleas, motions, demurrers, and amendments to the bill were filed by the respective parties.

On June 3, 1958, the court rendered a decree sustaining demurrer to the “amendment to the bill of complaint,” dismissing “the bill of complaint” with prejudice, and taxing the costs against appellant. On July 3, 1958, appellant filed a motion for a rehearing of the decree of “June 3, 1958, sustaining the demurrers * * * and dismissing the cause * * * ,” and the chancellor set the motion for hearing on July 11, 1958. On August 13, 1958, the court rendered a decree denying the motion for rehearing.

Thereafter appellant filed security:

“ * * * for all costs of appeal to the Supreme Court of Alabama, from the Decree rendered in the above entitled Cause on the 13 day of August 1958; * * * ”

The citation of appeal calls upon appellees to defend the appeal “ * * * from the decree rendered on the 13th day of August, 1958 * * *”

The certificate of the register recites that appellant “ * * * has taken an appeal from the Decree of said Court rendered on to-wit, August 13, 1958, to the Supreme Court of Alabama.”

It is unmistakably clear that the instant appeal is from the decree of August 13, 1958, which is a decree overruling a motion for rehearing in equity.

We have no alternative but to dismiss the appeal for want of jurisdiction.. It has been held consistently that no appeal will lie from a decree overruling a motion for a rehearing in equity. Ogle v. Ogle, 270 Ala. 201, 117 So.2d 191, and numerous authorities there cited.

Appeal dismissed.

LIVINGSTON, C. J., and LAWSON, STAKELY, GOODWYN and MERRILL, JJ., concur.