Holmes v. King

108 So. 253, 214 Ala. 418, 1926 Ala. LEXIS 52

• Court: Supreme Court of Alabama
• Decided: April 15, 1926
• Docket: 8 Div. 834.
• Status: Published

Opinion

SAYRE, J.

Appellant, sole child and heir of W. H. Holmes, averred to be civilly dead by reason of a sentence to the penitentiary for life, filed the bill in this cause to redeem, that is, to enforce, an alleged equity of redemption in lands and personal property left by her ancestor. Appellee replied by demur•ring to the bill, which demurrer was sustained, and by a plea, to state it in short, that the mortgages alleged in the bill had been duly foreclosed. Appellant’s motion to strike the plea and her demurrer thereto were overruled.

The decree on the demurrer to the bill was simply that “demurrers to the original bill be and the same are hereby sustained.” This decree did not dispose of the cause, did not dismiss the bill, and was interlocutory. Bickley v. Hays, 62 So. 767, 183 Ala. 506, and cases there cited. The appeal is governed by section 6079 of the Code of 1923 and, on appellee’s motion, must be dismissed because not taken within 30 days of the decree.

The decrees on appellant’s demurrer to the plea and motion to strike were also interlocutory, necessarily so, and as against them no appeal will lie; nor can they be assigned for error in advance of a decree disposing of the cause finally.

Appeal dismissed.

GARDNER, MILLER, and BOULDIN, JJ., concur.