Opinion
6 Div. 830.
August 19, 1930. Rehearing Denied October 7, 1930.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action on a promissory note by the Southern Bank Trust Company against J. F. Baldwin, doing business under the tradename of J. F. Baldwin Builders' Supply Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Hugh A. Locke and F. V. Wells, both of Birmingham, for appellant.
When an equitable defense would defeat the entire cause of action at law, a court of equity must take control and settle the controversy. Code 1923, § 6490; Watson v. Hamilton, 211 Ala. 688, 101 So. 609.
Arlie Barber, of Birmingham, for appellee.
The denial of a motion to transfer a cause from the law docket to the equity docket is not reviewable on appeal. Wiggins v. Stewart, 215 Ala. 9, 109 So. 101.
Motion was made by defendant to transfer this cause to the equity side of the docket, there to be tried as provided by section 6490 of the Code of 1923. There was demurrer filed to this motion, but no ruling on the demurrer appears of record. There are two affidavits appearing, and the judgment of the court is: "And the defendant files motion to transfer the case to the equity side of court by separate paper and said motion is by the court heard and considered, whereupon, it is ordered and adjudged by the court that the said motion be and the same is hereby overruled and defendant excepts." If the appellant has a right to review the action of the trial court in denying a motion to transfer the cause under the above section of the Code, it must be by bill of exceptions. Certain it is that it cannot be reviewed on the record as it is here sought to do. Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916; Wiggins et al. v. Stewart Bros., 215 Ala. 9, 109 So. 101.
We find no error in the record, and the judgment is affirmed.
Affirmed.