DocketNumber: 6 Div. 629.
Citation Numbers: 34 So. 2d 139, 250 Ala. 336, 84 So. 2d 139
Judges: SIMPSON, Justice.
Filed Date: 1/22/1948
Status: Precedential
Modified Date: 1/11/2023
This appeal is prosecuted by the complainant from a decree of the court in his favor sustaining his demurrer to the cross bill filed by the respondents. Under the uniform rulings of this court, such decree will not support an appeal by the demurrant. Watson v. Jones Bros.,
In Sandlin et al. v. Anders,
In Abrams v. Abrams,
In Bates v. Baumhauer,
In Pollak v. Stouts Mt. Coal Coke Co.,
"A demurrer to a part of the bill is equivalent to the motion to strike out the part thus objected to, and the sustaining of the demurrer has the same effect as the sustaining of a motion to strike the objectionable portion." There is certainly nothing in that case that authorizes a party to appeal from a decree in his favor.
The writer knows of no decision by this court that sustains the holding of the majority in this case and after diligent search has found none. The holding of the majority is a clear abandonment of the theory in pleading that a demurrer is a single entity and the sustaining of one or more grounds is a sustaining of the demurrer. According to the theory of the majority opinion, each ground assigned is a demurrer and, to illustrate, if 20 grounds are assigned and 19 are good, and the 20th ground is bad, nevertheless if that one ground is overruled, the demurrant may appeal and have this court review the ruling on this single ground.
In Bell v. McLaughlin,
Moreover, if the cross bill in this case be treated as a mere answer, the demurrer would not lie to it, nor does the statute authorize an appeal from a decree sustaining or overruling a demurrer to an answer. In the instant case the cross bill clearly contains equity to establish the relation of the respondents as tenants in common with the complainant, and have the land sold for division among the joint owners. The warranty deed made by Mrs. M. A.D. Freeman to her son J. H. Freeman was not void on its face and constituted a cloud on the title. The cross bill had but a single aspect, as above stated, and the allegations of fraud while illy pleaded were clearly sufficient to warrant an amendment alleging that the execution of the said deed was procured by undue influence and was pertinent to the relief which the cross bill seeks and it was not subject to be stricken on motion. Bates v. Baumhauer,
For the foregoing reasons, I respectfully dissent from the conclusion and holding of the majority. I am of the opinion that the appeal should be dismissed. Watson v. Jones Bros.,