Summary
In Graves v. Barganier, 223 Ala. 167, 134 So. 874, on an appeal from a decree striking the bill of complaint in an equity case, the author of the opinion in the Adams case, supra, writing for the court, said in part as follows: "Whatever may be the rule in other jurisdictions, our court has long been committed to the rule that an order of the trial court in striking a complaint without more will not support an appeal, but can be reviewed by mandamus.
Summary of this case from Dorrough v. McKeeOpinion
3 Div. 946.
May 28, 1931.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
C. E. O. Timmerman, of Montgomery, for appellants.
In view of the decision, it is not necessary that brief be here set out.
Steiner, Crum Weil and Hill, Hill, Whiting, Thomas Rives, all of Montgomery, for appellees.
The decree striking the bill does not adjudicate the merits of the controversy, is not final. It will not support an appeal, but appellant's remedy, if any, is by mandamus.
This appeal is from an order or decree of the circuit court, in equity, striking from the file the bill of complaint. In the case of Hayes v. Hayes, 192 Ala. 280, 68 So. 351, this court held that it was without jurisdiction to entertain an appeal from orders of the lower court in chancery unless such a decree or order is either a final decree or is one of the certain interlocutory orders provided by statute. The decree in question is not one of the interlocutory ones provided by statute, nor is it such a final decree as will support an appeal. Whatever may be the rule in other jurisdictions, our court has long been committed to the rule that an order of the trial court in striking a complaint without more will not support an appeal, but can be reviewed by mandamus. Davis v. McColloch 191 Ala. 520, 67 So. 701, and cases cited.
Appeal dismissed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.