Opinion
8 Div. 54.
October 10, 1929.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Wm. C. Rayburn, of Guntersville, for appellant.
In view of the decision it is not necessary that brief be here set out.
Street, Bradford Street, of Guntersville, for appellee.
This is not an appropriate case for appeal by a married woman without giving bond or security. Code, 1923, § 6138; Peters v. Schuessler, 208 Ala. 627, 95 So. 26; Lea v. Phillips, 216 Ala. 35, 112 So. 323; Coleman v. Smith, 52 Ala. 259; Cahalan v. Monroe, 65 Ala. 254.
Appellant claims the right of appeal because she is a married woman, by authority of section 6138 of the Code. This right is only granted when the decree or order subjects to sale some of her property, or when it decrees the payment of money, or the performance of some act by her. This court has held that a judgment at law for the recovery of land is not within the terms of the statute. Scott v. Shepherd, 215 Ala. 671, 112 So. 137. The opinion in that case pointed out some inaccuracies stated in Ex parte Barkley, 210 Ala. 466, 98 So. 463, and Barclay v. Shook, 213 Ala. 699, 104 So. 916, respecting the meaning of the statute in so far as it refers to the performance of some act by a married woman, and also referred to Ex parte Brown, 213 Ala. 7, 105 So. 170, as expressing a proper interpretation of the amendment of 1915 (Acts 1915, p. 715, § 1), as now embraced in the Code section, and showed that an order for the possession of land is not for the performance of an act within the terms of section 6138. These cases were referred to in Ex parte Jones, 217 Ala. 208, 115 So. 301, in which there was a decree for the payment of money. Lea v. Phillips, 216 Ala. 35, 112 So. 323; Ex parte Johns, 209 Ala. 638, 96 So. 888.
The decree from which the appeal is here taken is for the possession of land, and accomplishes the same result as a judgment at law in ejectment. Appellant is not authorized by the statute to appeal without bond from such a decree.
It follows that the motion to dismiss the appeal must be sustained.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.