WISE et al. v. SPEARS et al.

(76 South. 869) WISE et al. v. SPEARS et al. (4 Div. 728.) (Supreme Court of Alabama. Nov. 15, 1917.) 1. Appeal and Error <&wkey;78(3) — Orders Appealable-Orders Sustaining Demurrer. A judgment sustaining a demurrer to the complaint is not a final judgment from which an appeal will lie. 2. Appeal and Error <&wkey;792 — Dismissal on Court’s Own Motion. An appeal from a judgment sustaining a demurrer will be dismissed by the court ex mero mo tu; the matter being jurisdictional. Appeal from Circuit Court, Coffee County; A. B. Foster, Judge. Proceeding by J. F. Wise and others against J. H. Spears and others. From a judgment sustaining a demurrer, plaintiffs appeal. Appeal dismissed. J. A. Carnley, of Enterprise, for appellants. W. W. Sanders, of Elba, for appellees. [MAJORITY — SOMERVILLE, J.] SOMERVILLE, J. This proceeding is by motion to substitute a lost record, and thereupon to amend a final judgment nunc pro tunc. The judgment appealed from is, omitting prefatory recitals, as follows: “It is considered and adjudged by the court that the demurrer is well taken, and that it be and is hereby sustained by the court, and the defendants have and recover of the plaintiffs the costs of this cause, for which execution may issue.” In Eslava v. Jones, 79 Ala. 287, it is said: “The only judgment found in this record is an order of the court sustaining defendant’s demurrer to plaintiff’s complaint, and adjudging the costs of the motion against plaintiff. This is not a judgment disposing of the cause. There is no final judgment upon which an appeal will lie, and the motion to dismiss the appeal is granted.” That case is decisive of this appeal, and, the matter being jurisdictional, we are bound to dismiss the appeal ex mero motu. Meyers v. Martinez, 162 Ala. 562, 50 South. 351. Appeal dismissed. ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.