Bell v. King

This is a companion case to Bell v. King (6 Div. No. 8)98 So. 794.¹ In that cause the appeal was from a decree rendered July 24, 1923. An appeal from that decree was duly taken, security for costs given and approved, notice of appeal given, and the appeal was duly certified to and pending in this court when the decree of August 23, 1923, here appealed from, was entered.

We have held in the above cause that the decree of July 24th was a final decree which would support an appeal. Hence this court acquired jurisdiction of the cause. During the pendency of that appeal the lower court was without jurisdiction to proceed to the rendition of the decree sought to be reviewed on this appeal.

It is of no moment that no supersedeas bond had been given on the former appeal. A "supersedeas" is to suspend the execution of a decree already rendered, not to suspend proceedings in the pending cause further adjudicating the rights of the parties. Allen v. Allen, 80 Ala. 154; Moore v. Randolph, 52 Ala. 530; McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62; Southern Ry. Co. v. Birmingham, S. N. O. Ry. Co., 131 Ala. 663, 29 So. 191; Ex parte Hood, 107 Ala. 520, 18 So. 176; Betts v. Cobb,121 Ala. 154, 25 So. 692; Underwood v. Underwood, 162 Ala. 553,50 So. 305, 136 Am. St. Rep. 61.

The court below having no jurisdiction to render the decree here appealed from, the decree was void; a void decree will not support an appeal; this court can acquire no jurisdiction on such appeal even by consent of parties; and must take notice of its own want of jurisdiction apparent on the record. The appeal in this cause must therefore be dismissed. Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228; Meyers v. Martinez,162 Ala. 562, 50 So. 351; Sumner v. Hill, 157 Ala. 230,47 So. 565; Throne-Franklin Shoe Co. v. Gunn, 123 Ala. 640,26 So. 198; Nabers v. Morris Mining Co., 103 Ala. 543,15 So. 850; Clark v. Spencer, 80 Ala. 345; 1 Mich. Dig. 324, § 112; Singo v. McGhee, 160 Ala. 245, 49 So. 290.

We call attention to what was said by Brickell, C. J., in Jones v. Wilson, 54 Ala. 50, 55, and again in Ex parte Elyton Land Co., 104 Ala. 88, 92, 15 So. 939, touching the avoidance of two final decrees in a cause. The prompt, effective administration of justice often renders it advisable for the trial court to retain jurisdiction and control over the cause until it is finally disposed of, leaving nothing to be done save the issuance of appropriate writs to make effective the decree rendered. Our statutes have provided for appeals from certain interlocutory decrees, such as are deemed conducive to the final disposition of the issues on the merits. All other interlocutory decrees are reviewable only on appeal from the final decree. Had the decree of July 24, 1923 (reviewed in Bell v. King, supra), followed, in its second paragraph, the form of the first paragraph, merely announcing the opinion of the court as to the extent and character of relief to which the parties were entitled, the decree would have been interlocutory and not appealable. The trial court would thus have retained jurisdiction to proceed to the final decree of August 23, 1923.

What is said in Ex parte Elyton Land Co., supra, would not apply in all cases.

Where much of the litigation will be had on a reference, as in cases of trusts, copartnerships, and many others, it may appear much the better to settle the equities first, let an appeal be prosecuted thereon, if desired, and save the expense of litigating unnecessary issues in the further progress of the cause. But where the reference is pro forma, or does not involve great expense or delay, it is better to have but one final decree, so that the successful party may have the fruits of his decree, unless protected by supersedeas bond pending an appeal.

Much depends upon the particular case, and the form of decree is within the wise discretion of the court, acting within his jurisdiction.

For the reasons stated, the appeal in this cause is dismissed.

Appeal dismissed.

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

¹ Ante, p. 551.