Throne Franklin Shoe Co. et als. v. Gunn

Throne Franklin Shoe Co. et als. v. Gunn. Bill in Equity b'y Assignee for Administration of Trust. 1. Appeal; ■will not lie from decree sustaining demurrer to cross hill — A decree sustaining a demurrer to a cross'bill, ahd dismissing the same on motion for want of equity, is not such an interlocutory decree as will support' an appeal under the statute, (Code, § 427); and an appeal from such a decree will be dismissed by the court ex mero motu. Appeal from the Chancery Court of Jefferson. Heard before the Hon. Thomas Cobbs. The facts of the case are sufficiently stated' in the opinion. H. K. White and Vássar Allen, for appellant. Shyer &. Smyer, contra. [MAJORITY — DOWDELL, J.] DOWDELL, J. The appeal in this case is from a decree sustaining a demurer to a cross-bill and dismissing the same on motion for want of equity. It is an interlocutory decree, that does not come within the provisions of section 427 of .the Code, and from which an appeal will lie.—Barclay v. Spragins, 80 Ala. 357; Jones v. Woodstock Iron Co. 90 Ala. 545; Festorazza v. Catholic Church, 96 Ala. 178; Nabors v. Morris Mining Co., 103 Ala. 543; Buford v. Ward, 108 Ala. 307. The statute not authorizing the appeal, this court has no jurisdiction of the subject matter, and will, therefore, ex mero motu dismiss the appeal.—Nabors v. Morris, supra; Clark v. Spencer, 80 Ala. 345, and authorities above cited. Appeal dismissed.