Aston et al. v. Dodson

Aston et al. v. Dodson. Equity. Decided May 24, 1909. 49 South. 856. Appeal and Error; Decree to Support; Demurrer to Cross Bill. —A decree sustaining a demurrer to a cross bill and dismissing it, is not such an interlocutory decree as is authorized by section 2838, Code 1907, nor is it a final decree within the purview of section 2837, Code 1907, and hence, will not support an appeal. Appeal from Marion Chancery Court. Heard, before Hon. W. H. Simpson. Bill by Gertrude Dodson against Aughtie Aston and others. Prom la decree sustaining demurrers to the cross bill filed by the defendant and dismissing the same, respondents appeal. Dismissed. W. C. Davis, and A. F. Fite, for appellant. On demurrer being sustained to the cross bill in vacation it was error to dismiss the cross bill without giving respondent an opportunity to amend. — Gilmer v. Wallace. 75 Ala. 220; Olds v. Marshall, 98 Ala. 148. E. B. & K. V. Fite, for appellee. Counsel discuss the merits of the case and cite authority in support of their contention. They insist that the decree appealed from will not support the appeal under sections 2837 or 2838, Code 1907, and that the appeal should be dismissed. — Sumner v. Hill, 47 South. 565; Bichley v. Bichley, 129 Ala. 403; Thorne-Eranhlm S. Go. v. Gunn, 123 Ala. 640. [MAJORITY — ANDERSON, J.] ANDERSON, J. This appeal was taken from a decree of the chancellor sustaining demurrers to 1be respondenfis cross-bill' and dismissing same. The decree in question is not such a one as will support an appeal under section 2838 of the Code of 1907. Nor is it such a final decree as to bring it within the influence of section 2837 of the Code. The appeal must be dismissed, under the case of Thorne-Franklin Co. v. Gunn, 123 Ala. 640, 26 South. 198, and cases there cited. Dowdell, C. J., and McClellan and Mayfield, JJ., concur.