Indemnity Ins. Co. of North America v. Turnipseed ( 1926 )

The submission was on motion to dismiss the appeal and upon the merits.

Was the judgment final, as supporting an appeal? It denied the motion of the garnishee to be discharged, granted the motion of the plaintiff for an oral examination of the garnishee, and set a date for such final hearing of the facts. This was not such a final judgment as will support an appeal. It affirmatively appears that the cause is pending in the circuit court as to liability vel non of the defendant in garnishment. The motion is granted, and the appeal is dismissed. De Graffenried v. Breitling, 192 Ala. 254,68 So. 265; McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917; Burgin v. Suggs, 210 Ala. 142, 97 So. 216; Bell v. King, 210 Ala. 551,98 So. 794; Clifford v. Montgomery, 202 Ala. 609, 81 So. 551; First National Bank v. Watters, 201 Ala. 670, 79 So. 242; Plunkett v. Dendy, 197 Ala. 262, 72 So. 525; Lathrop Lumber Company v. Pioneer Lumber Co., 207 Ala. 522, 93 So. 427; Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939. The case of Johnson v. Westinghouse, Church, Kerr Co., 209 Ala. 672,96 So. 884, is analogous. This is a different case than that which would have been presented, had the trial court granted the garnishee motion for a discharge and so ordered. Gerald v. Walker, 201 Ala. 502, 78 So. 856; De Graffenried v. Breitling,192 Ala. 254, 68 So. 265.

The appeal is dismissed on motion.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.