Meyers v. Martinez

50 So. 351, 162 Ala. 562, 1909 Ala. LEXIS 404

Opinion

MAYFIELD, J.

A motion was made in the lower •court to dismiss the bill for want of jurisdiction appearing on the face of the bill. The motion was overruled, and from that order this appeal is attempted. .

It is insisted by appellant that this is a plea to the jurisdiction, and that the order overruling the motion is a decree on the sufficiency of the plea, and will therefore support an appeal. This cannot be. A plea must deny or confess and avoid. The motion does neither. It was not set down for hearing on its sufficiency, and could not have been so set down, because it averred no facts to avoid, and did not deny any part of the bill. It is not a motion to dismiss for want of equity. The equity of the bill is not denied. The motion only denies the jurisdiction of the parties. There is no decree on demurrers. The order overruling the motion will- not support an appeal.

The question of a judgment or decree in the lower court which -will support an appeal is jurisdictional in this court, and cannot be waived, though all parties consent to and insist upon consideration and review in this court. We see no merit in the motion, but we cannot, and do not, so decide.

Appeal is dismissed.

Dowdeix, C. J., and Simpson and Denson, JJ., concur.