Hinson v. Hinson

The appeal in this case seeks to review an interlocutory decree of the circuit court, in equity, sustaining the appellees' demurrer to the bill as amended.

The decree was rendered on the 6th day of December, 1948, and the appeal was taken seven months later, the 6th of July, 1949. The time for such appeals under the statute, Code of 1940, Title 7, § 755, is thirty days and if not taken within that time this Court is without jurisdiction and must dismiss the appeal ex mero motu. Minge v. Smith, 206 Ala. 330, 89 So. 473; City of Troy v. Murphree, 214 Ala. 118, 107 So. 83; Holt v. City of Birmingham, 237 Ala. 196, 186 So. 549; Boshell v. Phillips, 207 Ala. 628, 93 So. 576.

The motion of the complainant to set aside the decretal order sustaining the demurrer and the orders of the court in respect thereto were inefficacious to interrupt the running of the statute fixing the limitations within which the appeal could be taken for two reasons. The first is that the motion was not filed within thirty days from December 6, 1948, and the other is that such motion does not suspend the running of the statute.

Only motions for new trial at law after final judgment and applications for rehearing in equity after final decree operate to suspend the running of the time fixed by the statute for appeal. Carlisle et al. v. Carmichael. 222 Ala. 182,131 So. 445; Williams v. Knight et al., 233 Ala. 42, 169 So. 871; Scott v. Leigeber, 245 Ala. 583, 18 So. 2d 275.

Appeal dismissed.

FOSTER, LIVINGSTON and SIMPSON, JJ., concur.