Marsh v. Wittmeier

190 So. 2d 920, 280 Ala. 172, 1966 Ala. LEXIS 889

• Court: Supreme Court of Alabama
• Decided: October 13, 1966
• Docket: 6 Div. 76
• Status: Published

Opinion

COLEMAN, Justice.

The record indicates that the plaintiff undertook to suffer a voluntary nonsuit under § 819, Title 7, Code 1940, on account of a ruling sustaining a demurrer to the complaint. Plaintiff also undertakes to appeal to obtain review of that ruling. The judgment entry, in pertinent part recites :

“January 10, 1964. Comes this day the parties to this cause by their attorneys and in open court the plaintiff takes a non suit because of the adverse ruling by the court on the demurrer. The plaintiff is given leave to appeal and on this day files notice of appeal to the Supreme Court of Alabama.”

Appellee points out that the foregoing entry is not a final judgment that will support an appeal. Mason v. McClain, 271 Ala. 93, 122 So.2d 519; Bradford v. Engelhardt, 276 Ala. 201, 160 So.2d 485; and authorities cited.

A final judgment is necessary to give jurisdiction to this court on appeal. In the absence of a final judgment, there is nothing for this court to review and we must dismiss the appeal ex mero motu. Authorities, supra.

Appeal dismissed.

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