Sewell v. Buyck

Supreme Court of Alabama

Sewell v. Buyck

53 So. 279, 168 Ala. 533, 1910 Ala. LEXIS 573

CourtSupreme Court of Alabama

DecidedJuly 6, 1910

StatusPublished

Cited by1 cases

This text of 53 So. 279 (Sewell v. Buyck) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sewell v. Buyck, 53 So. 279, 168 Ala. 533, 1910 Ala. LEXIS 573 (Ala. 1910).

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Opinion

SAYRE, J.

The cause having been submitted to the chancellor for decree in vacation on general and special demurrers, a decree was rendered, in the course of which the chancellor stated his opinion that there was no equity in the bill, and that none could be injected into it by amendment. The chancellor also stated his opinion that the conclusion reached in reference to the equity of the bill rendered it unnecessary to pass upon a motion to strike submitted at the same time. Accordingly he made a decree sustaining the demurrers, general and special, and taxing the complainant with the costs of the suit. This was the full extent of the decree. This appeal was taken more than 30 days after the rendition of the decree, and the appellee moves that it be dismissed for that reason.

The chancellor indicates very clearly his opinion that the bill ought to stand dismissed for defect in substance, and probably would have so decreed but for doubt as to the power to make such decree on demurrer without giving leave to amend. However that may he, the decree did not in terms or effect dismiss the bill. The consequence is that the hill was still pending in the chancery court at the date of the appeal, open to amendment as for anything determined by the decree, and, the appeal having been taken after the statutory [535]*535period limited for appeals from interlocutory decrees on demurrer, this court is without jurisdiction to review the decree, and the motion to dismiss must prevail.

Appeal dismissed.

Dowdell, C. J., and Anderson and Evans, JJ., concur.

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SAYRE, J.

The cause having been submitted to the chancellor for decree in vacation on general and special demurrers, a decree was rendered, in the course of which the chancellor stated his opinion that there was no equity in the bill, and that none could be injected into it by amendment. The chancellor also stated his opinion that the conclusion reached in reference to the equity of the bill rendered it unnecessary to pass upon a motion to strike submitted at the same time. Accordingly he made a decree sustaining the demurrers, general and special, and taxing the complainant with the costs of the suit. This was the full extent of the decree. This appeal was taken more than 30 days after the rendition of the decree, and the appellee moves that it be dismissed for that reason.

The chancellor indicates very clearly his opinion that the bill ought to stand dismissed for defect in substance, and probably would have so decreed but for doubt as to the power to make such decree on demurrer without giving leave to amend. However that may he, the decree did not in terms or effect dismiss the bill. The consequence is that the hill was still pending in the chancery court at the date of the appeal, open to amendment as for anything determined by the decree, and, the appeal having been taken after the statutory [535]*535period limited for appeals from interlocutory decrees on demurrer, this court is without jurisdiction to review the decree, and the motion to dismiss must prevail.

Appeal dismissed.

Dowdell, C. J., and Anderson and Evans, JJ., concur.

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53 So. 279, 168 Ala. 533, 1910 Ala. LEXIS 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sewell-v-buyck-ala-1910.

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