STATE ex rel. WRIGHT v. KEMP

(87 South. 836) STATE ex rel. WRIGHT v. KEMP. (6 Div. 153.) (Supreme Court of Alabama. Jan. 13, 1921.) Appeal and error <&wkey;>78(3) — Judgment sustaining demurrer without dismissing complaint not appealable as “final judgment.” Notwithstanding Code 1907, §§ 2843, 5470, a judgment sustaining demurrer to complaint in quo warranto proceeding, without dismissing the complaint, is not appealable, it not) being a final judgment within section 2837, authorizing appeal from final judgments or decrees. [Ed. Note. — Tor other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.] Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge. Quo warranto by the State of Alabama, on the relation of D. N. Wright, seeking to inquire by what warrant or authority W. 'T. Kemp holds and exer'eises the office of deputy sheriff of the Bessemer division of the Jefferson circuit court. From a decrée sustaining demurrers to the petition, relator appeals. Appeal dismissed. Goodwyn & Ross, of Bessemer, for appellant. Counsel discuss the merits of the case on the demurrers, but in view of the opinion it is not deemed necessary to here set them out. They further insist that, under sections 2843,' 2S37, 3017, 2S3S, and 5470, an appeal lies from the judgment here rendered. They further insist that section 2843 makes special provision for this character of appeal. Burgin & Jenkins, of Birmingham, for appellee. The appeal will not lie, and should be dismissed. 76 South. 869. Quo warranto will not lie in this case. 166 Ala. 122, 52 South. 202, 139 Am. St. Rep. 17, 21 Ann. Cas. 1123. [MAJORITY — BROWN, J.] BROWN, J. This appeal is from the judgment of the circuit court sustaining demurrers to the information or complaint. It is conceded that there was no dismissal of the complaint, and that the judgment is not a final judgment, within the purview of section 2837 of the Code, but the appellant insists that the appeal may be sustained under the provisions of section 2843 of the Code. This latter section has been construed to authorize an appeal from the order of the judge granting or refusing temporary writs, and not from judgments or orders of the court. State ex rel. v. Crook, Judge, 123 Ala. 657, 27 South. 334. Section 5470, ati|thorizing an appeal by either party to a quo warranto proceeding, does not specify from what judgment such appeal may be taken, and must be construed in connection with section 2837, authorizing appeals from final judgments or decrees. The judgment here, not being a final judgment, will not sustain an appeal, and the appeal will therefore be dismissed. Wise v. Spears, 200 Ala. 695, 76 South. 869. Appeal dismissed. ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.