Weems v. Weems , 253 Ala. 205 ( 1949 )

FOSTER, Justice.

This is an appeal from what is thought to be a decree on demurrer to a bill in equity by the appellee against the appellant praying for a divorce.

Appellee makes the point that the decree is not sufficient to sustain an appeal because it is not an adjudication of L.e court. It is in the following language: “This cause being submitted in term time for decree on demurrer and the court having considered same, is of the opinion the demurrer is not well taken and same is hereby overruled and respondent allowed thirty days in which to file answer, and respondent excepts to the ruling of the court.”

We have a long line of cases in this State, the effect of which is to hold that such is not a judgment or decree but is merely expressive of the opinion of the court. Thomas v. White, 244 Ala. 128, 12 So.2d 567; Chambers v. Morris, 144 Ala. 626, 39 So. 375; Tallassee Falls Mfg. Co. v. Western Railway of Alabama, 128 Ala. 167, 29 So. 203; Hereford v. Combs, 126 Ala. 369, 28 So. 582; Bessemer Land & Improvement Co. v. DuBose, 125 Ala. 442, 28 So. 380; Alabama National Bank v. Hunt, 125 Ala. 512, 28 So. 488; Cartlidge v. Stone, 124 Ala. 596, 26 So. 918; McDonald v. Alabama Midland Railway, 123 Ala. 227, 26 So. 165; Bell v. Otts, 101 Ala. 186, 13 So. 43, 46 Am.St.Rep. 117.

We think, however, that it will not be out of place for us to express an opinion with reference to the sufficiency of the bill to withstand the demurrer interposed. The allegations of the bill on which the relief is sought are contained in the fifth paragraph thereof, which will be set out in the report of the case. It is our view that those allegations are sufficient to show cruelty, as defined in section 22, Title 34, Code, as amended. Campbell v. Campbell, Ala.Sup., 41 So.2d 185; Harris v. Harris, 230 Ala. 508, 162 So. 102; Farmer v. Farmer, 86 Ala. 322, 5 So. 434.

But since there is no decree of the lower court sufficient to support the appeal, it is necessary for us to dismiss it.

The appeal is dismissed, and appellant allowed thirty days in which to answer the bill.

Appeal dismissed.

BROWN,' LAWSON and STAKELY, JJ., concur.