Townsend v. McCall

78 So. 2d 310, 262 Ala. 235, 1955 Ala. LEXIS 424

• Court: Supreme Court of Alabama
• Decided: February 24, 1955
• Docket: 6 Div. 587
• Status: Published

Opinion

PER CURIAM.

This is a petition for mandamus to require the City Commission of Tuscaloosa to perform certain acts in connection with the making of a contract to construct a water supply tunnel for the city waterworks system.

The trial court entéred a judgment in which he (1) overruled a demurrer of petitioner to a plea in abatement; (2) overruled objections to an amendment of the petition and allowed the amendment; (3) overruled a motion to discontinue the cause on account of such amendment; and (4) (with reference to a motion to dismiss the petition, the following is quoted from it) “the court is of the opinion that the same (motion to dismiss the petition) is well taken and motion granted and rule nisi is set aside and the petition is dismissed”, — an exception is noted. That ends the judgment dated April 29, 1953. After a motion for a new trial was denied within thirty days an appeal bond was filed on May 11, .1953. ...

There is ho feature of the judgment which is sufficient to support an appeal. If it were a final judgment dismissing the cause it would he sufficient to that end. Ex parte Hendree, 49 Ala. 360. But the attempted dismissal is not complete in form to be a judgment which is sufficient to support an appeal. Davis v. McColloch, 191 Ala. 520, 67 So. 701; Martin v. Alabama Power Co., 208 Ala. 212, 94 So. 76; Cooper v. Cooper, 216 Ala. 366, 113 So. 239; Wallace v. Screws, 225 Ala. 187, 142 So. 572; Webb v. French, 225 Ala. 617, 144 So. 818; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; Biddle v. Employers Ins. Co., 257 Ala. 276, 58 So.2d 596; Couch v. Rodgers, 257 Ala. 560, 59 So.2d 809.

The appeal should be dismissed.

The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.

Appeal dismissed.

LAWSON, SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. LIVINGSTON, C. J., not sitting. MAYFIELD, J., not sitting, having been of counsel in the court below.