Thornton v. Kyle

PETEES, J. This is an appeal from the judgment of the learned chancellor iñ the court below, on a demurrer to the cross-bill. The cross-bill was assailed by demurrer for want of equity. The demurrer was sustained and the cross-bill dismissed. From this order dismissing the cross-bill, the complainant therein appeals to this court, and assigns the order of dismissal as error. The appellees refuse to join in error in this court, and move to dismiss the appeal, as prematurely taken before the final determination of the cause. This identical question was settled by this court in the case of Parish, administrator, v. Galloway, 24 Ala. 163. It is, however, now contended by the appellant that this case has been overruled by the later case of Brooks v. Woods, 40 Ala. 538. This seems to be a misapprehension of the [380] latter determination. The court there say : “ The appellee joins in the assignments of error, and this case is not like Parish, adm’r, v. Galloway, 24 Ala. 163.” — 40 Ala. R. 540. This is not a disapproval of the former case, but rather a reaffirmance of it. We think the case in 24 Ala. 163, was rightly decided. Here there was no joinder in error before the motion to dismiss. The cases are, therefore, identical.The statute allowing interlocutory decrees to be appealed from does not comprehend this case. That statute is in these words : “ An appeal to the supreme court may be taken before the final determination of the cause, from any judgment or decree overruling a motion to dismiss a bill for want of equity, or overruling a motion to dismiss or quash an attachment or sustaining a demurrer to a plea in abatement to an attachment, or sustaining an attachment against matters set up in abatement of it, either in the way of an agreed case, or by plea or otherwise; but such appeal shall be taken only after the consent of the opposite party or his attorney is obtained to its being taken ; and on the trial of such appeal, there shall not be a reversal, if the supreme court discovers that the defect or error alleged or insisted on can be removed or remedied by amendment under existing laws.” — Revised Code, § 3486. In this case there was no consent to the appeal, and it could not be taken under this statute. Besides, it was not such a judgment as comes within the statutory description. An appeal is not a matter of practice in which this court can prescribe the rule to allow it; but it is a matter of right given by the statute. If there is no statute allowing the right, it does not exist. — Rev. Code, §§ 3485, 3486. In this case there is no such statute. We therefore feel reluctantly compelled to grant the motion dismissing the appeal. And the appellant will pay the costs of this motion, and the costs of the appeal in this court and in the court below.