Kinney v. Reeves & Co.

139 Ala. 386

• Court: Supreme Court of Alabama
• Decided: November 15, 1903
• Status: Published

Opinion

DOWDELL, J.

The appeal in this case is taken from the decree of the chancellor on the demurrer to the bill. Tlie demurrer was single and contained six grounds or assignments, eacli of which went to the bill in its entirety. The decree in terms overruled the first five grounds, but sustained the sixth. Where a demurrer contains more than one ground or assignment, and all' of which are addressed to the bill as a whole, the-sustaining of any one ground, is a sustaining of the demurrer. Coleman v. Butt, 130 Ala. 266.

The decree on the demurrer was favorable to the respondents, appellants here, and they cannot complain. Until the bill has been amended in conformance Avith the ruling on the demurrer, the complainants cannot proceed Avith the cause, and failing or refusing to amend, it is subject to be dismissed on respondent’s motion for Avant of prosecution. If, after the bill has been amended, the respondent should desire to do so, they may properly re-neAV the demurrer to the bill as -amended on those grounds Avhich were overruled, and in this manner have the question reviewed, if the demurrer is overruled. The appellants can take nothing by this appeal. See Watson v. Jones Bros., 121 Ala. 579; Ferris v. Hoglan, Ib. 240 ; Cottingham v. Greely, 123 Ala. 479.

Appeal dismissed.