Mason v. McClain

LIVINGSTON, Chief Justice. The cause was submitted in this court on appellee’s motion to dismiss the appeal, and on the merits. The complaint, as last amended, contained four counts, and claimed damages of the defendant for wrongfully withholding, from plaintiff, the dead body of Henrietta Jones, the daughter of appellant. Demurrer was sustained to the complaint and this appeal followed. The judgment entry, in pertinent part, recites: “March 16, 1959. The said demurrers being presented to the court and being heard and understood by the court, the said demurrers are by the court sustained. Plaintiff excepts to court’s ruling and takes a voluntary non-suit and gives notice of appeal.” A final judgment is necessary to give jurisdiction on appeal to this court of the case; it cannot be waived by the parties, and, for want of it, we cannot review the rulings of the trial court. There should have been an order of the court granting the nonsuit, dismissing the case, taxing the costs, and directing execution to issue for it, if not paid, to make the judgment complete and final. There are many decisions of this court to that effect. We cite only a few of them. Lathrop Lumber Co. v. Pioneer Lumber Co., 207 Ala. 522, 93 So. 427; Martin v. Alabama Power Co., 208 Ala. 212, 94 So. 76; Curry v. Kennedy, 228 Ala. 656, 154 So. 785; Heffelfinger v. Lane, 239 Ala. 151, 194 So. 504; Biddle v. Employers Insurance Co. of Alabama, Inc., 257 Ala. 276, 58 So.2d 596; Couch v. Rodgers, 257 Ala. 560, 59 So.2d 809. The record contains no order of final judgment of the court on the nonsuit. Therefore, appellee’s motion must be granted and the appeal dismissed. It is so ordered. Appeal dismissed. LAWSON, STAKELY and MERRILL, JJ., concur.