Taylor v. Major Finance Company, Inc.

268 So. 2d 738, 289 Ala. 458, 77 A.L.R. 3d 1072, 1972 Ala. LEXIS 1087

• Court: Supreme Court of Alabama
• Decided: September 14, 1972
• Docket: 6 Div. 899
• Status: Published

Opinions

MADDOX, Justice.

Appellant-complainant, Beatrice Taylor, filed a class action against Major Finance Company and numerous other companies and individuals engaged in the business of making small loans [27 separate companies and individuals] alleging that the respondents charged usurious interest on loans made to her and the members of the class of borrowers she represented and wrongfully induced the class to execute contracts, notes, and mortgages to secure payment of said unlawful loans. The bill also alleged that the respondents, by using harsh collection tactics and coercing the borrowers to renew their loans, were committing acts constituting both a public and private nuisance.

Various respondents filed responsive pleadings to the bill as amended, labelling them either “motions to dismiss” or “motions to strike” or “demurrer.” The majority of these responsive pleadings were addressed to the bill as a whole; a few were addressed to specific aspects of the bill. On November 9, 1970, the trial judge issued what was styled as a “final decree” whereby: (1) the separate and several demurrers of the separate and several respondents were separately and severally sustained, (2) the cause was dismissed without prejudice to Beatrice Taylor, (3) the costs of the action were taxed to the complainant, Beatrice Taylor.

Complainant, individually and on behalf of all other people similarly situated, then filed an application for rehearing on December 8, 1970. On March 26, 1971, she filed a motion to set aside the final decree and for a severance. On March 26, 1971, the trial judge entered an “order” whereby the “application for rehearing” and the “motion to set aside final decree and for a severance” were denied. The appellant-complainant then took an appeal from the decrees rendered on November 9, 1970 and March 26, 1971.

The first question presented is whether the decree entered on November 9, 1970 was a “final decree.” The question whether a decree is final, so as to support an appeal therefrom, is a jurisdictional one and it is the duty of the court, where it is determined that a decree is not final, to dismiss the appeal on its own motion. Wood v. Finney, 207 Ala. 160, 92 So. 264 (1922); Bentley v. Knox, 258 Ala. 377, 62 So.2d 921 (1953).¹

The “final decree” of November 9, 1970, sustained demurrers of the separate respondents “separately and severally”, “without prejudice to the individually named complainant, Beatrice Taylor, to the filing of a proper action in law or in equity.”

Tit. 7, § 754, Code, 1940, (Recompiled, 1958) requires a final judgment to support an appeal. Tit. 7, § 755, Code, as amended, provides:

“No appeal lies from any decree rendered in equity cases sustaining or overruling a demurrer to a bill in equity, or to a cross-bill. Either party may seek a dismissal of the cause where the demurrer is sustained and no amendment to the bill is made during the time allowed by the court, and the complainant may appeal from the final decree of dismissal; but nothing in this section shall prevent an assignment of errors on such decrees on appeals taken on the final determination of the cause.”

There must be a “final decree of dismissal,” and a decree dismissing a bill “without prejudice” is not a “final decree of dismissal.” Burger In A Hurry, Inc. v. Green Grove, Inc., 280 Ala. 341, 194 So.2d 90 (1967); Vacalis v. Lowry, 279 Ala. 264, 184 So.2d 345 (1966). This court, in Vacalis, supra, commented on the purpose of Act No. 72, approved September 15, 1961, which amended Tit. 7, § 755, as follows:

“We think it clear that one of the purposes of the Legislature in enacting Act 72, supra, was to prevent complainants in equity cases from having this court pass on decrees of the trial courts sustaining demurrers to bills in equity until the cause was finally disposed of in the trial court. In our opinion a decree dismissing a bill without prejudice is not a ‘final decree of dismissal’ as those words are used in Act 72, supra. A final decree puts an end to all controversies litigated or which ought to have been litigated within the power and duty of the parties in respects to the particular controversy. Tilley’s Alabama Equity, § 170, pp. 180-181.”

The decree of November 9 sustaining the demurrers and dismissing the case “without prejudice” is not a final, appealable decree in that Beatrice Taylor is not precluded, by such decree, from refiling the same suit in law or equity.

We note that the decree dismissing the cause of action without prejudice insofar as complainant’s right to maintain an individtial action in law or equity does not address itself to the question of complainant’s right to maintain a class action. Assuming that the decree of the trial court was “final” insofar as complainant’s right to maintain a class action was concerned, the trial court did not err.

Appellant, in her motion to set aside, argues that the decree entered November 9, 1970 is actually “with prejudice” in that Act No. 374, Acts of Alabama, 1959, pp. 966, 979 (Tit. 5, § 290(8), which provides for a cause of action under the Alabama Small Loan Act, specifies that the cause of action must be commenced within one year of the date of the last payment on the loan agreement. Appellant argues that the one year statute of limitation has run so that the dismissal “without prejudice” is actually “with prejudice.” The amended bill of complaint contains no allegations showing that one year has lapsed from the time of last payment on the loans secured by the complainant. Consequently, there is nothing in the record to show that the decree of dismissal “without prejudice” was actually “with prejudice” due to the tolling of the one year statute of limitation for bringing a usury cause of action. Absent a “final decree of dismissal with prejudice,” the decree entered November 9, 1970 is not appealable. Burger In A Hurry and Vacalis, supra.

We next consider whether the order of the circuit court rendered March 26, 1971, is final and, therefore, appealable. This order denied the appellant’s application for rehearing and motion to set aside the final decree. An order or decree denying an application for rehearing will not support an appeal unless the denial modifies the final decree. Reames v. Holman, 283 Ala. 582, 219 So.2d 632 (1969), and Williams v. Evans, 286 Ala. 20, 236 So.2d 680 (1970). Here the order simply denied the application for rehearing without modifying the final decree so that it is not reviewable on appeal. Equity Rule 62. There is no difference between a motion to set aside a dismissal of a cause and a motion for a rehearing in said cause. The same rules apply. Board of Registrars of Russell County v. Mathews, 274 Ala. 73, 145 So.2d 799 (1962). Since the denial of the motion to set aside the decree in no way modified the decree, the decree of denial was not appealable. Equity Rule 62; Board of Registrars of Russell County v. Mathews, supra.

The order of March 26, 1971, in addition to denying the appellant’s application for rehearing and motion to set aside, denied the appellant’s motion to sever wherein Beatrice Taylor sought permission of the court to sue, individually and on behalf of the class, each respondent loan company and their owners separately.

As we have pointed out above, the decree of November 9, 1970 was not a final decree. The order of the trial court denying the motion for a severance was not a final decree. As we view the state of the record, the complainant filed a class action against several respondents. The trial court sustained demurrers and on November 9, 1970 dismissed the bill without prejudice to the complainant’s filing an individual action in law or equity. No request was made for permission to amend in view of the action of the court on the demurrers. It was on March 10, 1971 when she first alleged, in an amended motion for rehearing, that the dismissal of the complaint failed to accord her the right to amend. The motion for severance affirmatively shows that complainant still wished to maintain a class action. As we have already pointed out, the court did not err in this respect.

Upon consideration of the two decrees appealed from, we determine neither to be final. The appeal is due to be dismissed.

Appeal dismissed.

HEFLIN, C. J., and MERRILL, HARWOOD and SOMERVILLE, JJ., concur.

1 . We point out that all appellees represented by counsel have filed motions to dismiss tbe appeal on the ground that the decrees were not “final.”