Savage v. Johnson

127 Ala. 401

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

SHARPE, J.

The decree sought to be reviewed under this bill was heretofore examined by this court upon an appeal taken by these appellants from the subsequent' final decree rendered in the same cause. — Savage et al. v. Johnson et al., 125 Ala. 673.

Upon their application for a rehearing in that appeal it was contended by these appellants that the decree described in this bill was not final in its character, and therefore they had the right to assign it for error and have it reversed upon that appeal which was taken only from the last decree. Such right was urged upon the true ground that there had been no ascertainment either by the pleadings or proof or by the terms of the decree of any sum owing by Pinson Brothers & Co. to Johnson; that inquiry having been only referred to the register.

Since complainants’ liability depended upon the ascertainment of such indebtedness and remained to be thereafter determined, the decree here in question was not final. This position assumed and urged by the appellants in the other appeal must prevail against them here, and it follows that this bill cannot be maintained. A bill of review lies onlv after a final decree. — Story’s Eq. PI., § 408a.

The decree appealed from will be affirmed at appellants’ cost.

Affirmed.