Summary
In Brasher v. Grayson, 219 Ala. 631, 122 So. 881, the appeal was from an interlocutory decree appointing a receiver authorized by § 6082 of the Code.
Summary of this case from Berman v. Wreck-A-Pair Bldg. Co.Opinion
6 Div. 298.
June 6, 1929. As Modified, on Denial of Rehearing, June 27, 1929.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
Fort Jones, of Birmingham, for appellant.
In view of the decision, it is not necessary that brief be here set out.
Miller, Graham Wingo, of Birmingham, for appellee.
Whenever the equity of a bill, complaint, or petition has been tested and upheld by the Supreme Court on an appeal from any interlocutory decree, order, or judgment, no other appeal can be taken from any subsequent interlocutory order, judgment, or decree. Code 1923, § 6080; Shields v. Hightower, 216 Ala. 224, 112 So. 834; Ala. Water Service Co. v. Anniston, 217 Ala. 271, 116 So. 124; Allen v. Young, 218 Ala. 82, 117 So. 641; Phillips v. Birmingham Ind. Co., 171 Ala. 445, 54 So. 603; Hurt v. Hurt, 157 Ala. 126, 47 So. 260; Bank v. Savings Loan Co., 104 Ala. 297, 16 So. 110.
This appeal is from a decree overruling demurrers to the cross-bill of C. H. Grayson, respondent in the original bill.
The cause was here on appeal from an interlocutory decree appointing a receiver at the instance of cross-complainant. The decision (Brasher v. Grayson, 217 Ala. 674, 117 So. 301) fully outlined the nature of the suit, sustained the equity of the cross-bill, and further proceeded to declare the nature of relief that would work out the equities of the parties, viz., permitting the complainant in the original bill to disaffirm a mortgage because of infancy, requiring a restoration of the consideration so far as the proceeds were still in his hands, and, inasmuch as, per agreement of all parties, these proceeds were invested in a residence still held by the mortgagor, and both parties had contributed to the purchase of the lot and erection of the improvements, and it appearing the present value was insufficient to reimburse all parties, the mortgagee must first hold the minor harmless as to his own investment, and, this done, he should be reimbursed so far as may be by a sale of the property.
This by way of declaring the conditions precedent to disaffirmance in equity, because of infancy, and defining the duties of the mortgagee upon his offer to do equity, an essential feature of his cross-bill. The demurrer was addressed to the same cross-bill, without amendment.
Clearly the prime object of the present appeal is to challenge the former opinion as to the right of cross-complainant to reimbursement as therein declared. The appeal is directly within the inhibition of Code, § 6080. Shields v. Hightower, 216 Ala. 224, 112 So. 834; Alabama Water Service Co. v. City of Anniston, 217 Ala. 271, 116 So. 124; Allen v. Young, 218 Ala. 82, 117 So. 641. The appeal is dismissed on motion of appellee.
Appeal dismissed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.