Opinion
3 Div. 586.
January 18, 1923. Rehearing Denied February 8, 1923.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
W. A. Gunter, of Montgomery, for appellant.
A bill out of court, dismissed, cannot be amended. An opportunity to amend after demurrer sustained was not afforded, and the decree was in error. Code 1907, § 5369; 130 Ala. 584, 30 So. 568; 72 Ala. 300; 74 Ala. 213; 75 Ala. 317; 83 Ala. 317, 3 So. 597; 94 Ala. 236, 10 So. 654; 113 Ala. 577, 21 So. 337; 108 Ala. 309, 19 So. 357; 74 Ala. 121; 69 Ala. 502; 52 Ala. 167.
Ball Beckwith, of Montgomery, for appellees.
Counsel argue that the decision on former appeal disposes of the case. 206 Ala. 88.
The report of this cause on former appeal appears in 206 Ala. 88, 89 So. 238. The amendment of the bill on June 14, 1922, after affirmance here, wrought no material change of the bill in respect of the status considered on former appeal. No confidential relation, such as that of pledgor and pledgee (Crowson v. Cody, 207 Ala. 476, 93 So. 420), is shown in the amended bill to have existed with respect to Allison, the complainant, and the defendant Cody, who effected statutory redemption as stated on former appeal of this cause. The decree of July 25, 1922, sustaining demurrer to the bill as amended is affirmed upon the authority of Allison v. Cody, 206 Ala. 88, 89 So. 238.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
On Rehearing.
The contention that error to reverse affects the decree sustaining demurrer to the amended bill, in the particular that the decree dismissed "the bill of complaint as amended," without allowing opportunity to amend, is not well founded, for that the ruling was made in term time, and the record does not disclose that the privilege of amendment was either sought by appellant or denied by the trial court upon the occasion of sustaining the demurrer to the amended bill. Mohon v. Tatum, 69 Ala. 466, 470; Buford v. Ward, 108 Ala. 307, 314, 19 So. 357.
The rehearing is denied.
ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.