Unless an appeal by a married woman falls within the purview of Code, § 6138, no appeal can be had without giving security for costs. This appeal from a decree sustaining demurrer to her bill is not within the purview of the Statute. Ex parte Watkins, 226 Ala. 634, 148 So. 335; Lea v. Phillips, 216 Ala. 35, 112 So. 323; Scott v. Shepherd, 215 Ala. 671, 112 So. 137; Cobb v. Reed Phosphate Co., 220 Ala. 55, 124 So. 94; Hildebrand v. First Nat. Bank, 221 Ala. 216, 128 So. 219; Ex parte Johns, 209 Ala. 638, 96 So. 888; Nichols v. Snead, 224 Ala. 324, 140 So. 375. FOSTER, Justice.
Julian Harris and A. J. Harris, both of Decatur, for appellees. The appeal not having been taken in time, this court is without jurisdiction to entertain it, and it should be dismissed ex mero motu. Troy v. Murphree, 214 Ala. 118, 107 So. 83; Thompson v. State, 216 Ala. 348, 113 So. 296; Collins Pav. Co. v. Holseapple, 221 Ala. 308, 128 So. 599; Hildebrand v. Bank, 221 Ala. 216, 128 So. 219; Colbert County v. Bank, 225 Ala. 632, 144 So. 803, 806. THOMAS, Justice.
R. L. Almon, of Moulton, for respondent. Petitioner, being a claimant or substituted defendant in detinue, does not fall within the exceptional privilege afforded married women by section 6138 of the Code. Guy v. Lee, 80 Ala. 346; Ex parte Brown, 213 Ala. 7, 105 So. 170; Scott v. Shepherd, 215 Ala. 671, 112 So. 137; Hildebrand v. First Nat. Bank, 221 Ala. 216, 128 So. 219; Nichols v. Snead, 224 Ala. 324, 140 So. 375; Ex parte Johns, 209 Ala. 638, 96 So. 888; Cobb v. Reed Phosphate Co., 220 Ala. 55, 124 So. 94. If this case be regarded as detinue, the judgment is not for money, as the measure of recovery in detinue is the recovery of the specific property. Louisville N. R. Co. v. James, 204 Ala. 604, 86 So. 906. If regarded as a claim suit, the judgment is not for money but for the property claimed; the title to the property, being the issue.
Wm. Vaughan, of Birmingham, for appellee. Respondent was not entitled to appeal in this case without giving security for cost. Hildebrand v. First Nat. Bank, 221 Ala. 216, 128 So. 219; Scott v. Shepherd, 215 Ala. 671, 112 So. 137; Lea v. Phillips, 216 Ala. 35, 112 So. 323; Cobb v. Reed, 220 Ala. 55, 124 So. 94; Peters v. Chas. Schuessler Sons 208 Ala. 627, 95 So. 26. FOSTER, J.
An appeal must be taken in the manner prescribed in the statute, Tit. 7, § 766, Code of Alabama, 1940, otherwise there is no appeal. In Hildebrand v. First National Bank of Fairfield, 221 Ala. 216, 128 So. 219, we said: "* * * Section 6101, Code (Tit. 7, § 766), provides the manner of taking an appeal, and section 6127 (Tit. 7, § 788), the time in which it must be done, and, unless taken in such time and manner as there provided, it is not taken at all.
" In Hildebrand v. First National Bank of Fairfield, 221 Ala. 216, 128 So. 219, we said: "* * * Section 6101, Code (Tit. 7, § 766), provides the manner of taking an appeal, and section 6127 (Tit. 7, § 788), the time in which it must be done, and, unless taken in such time and manner as there provided, it is not taken at all."
The decree appealed from does not involve a moneyed judgment. Hildebrand v. First National Bank, 221 Ala. 216, 128 So. 219. Under the law regulating this appeal security for costs only was required. Here the obligation must be to pay the costs of the appeal.
Our conclusion is that a judgment merely for costs against a married woman is not a judgment for the payment of money within the meaning of § 799, Title 7, Code of 1940, and therefore the motion to dismiss this appeal should be and is sustained. Hildebrand v. First National Bank of Fairfield, 221 Ala. 216, 128 So. 219; Nichols v. Snead, 224 Ala. 324, 140 So. 375; Pritchett v. Wilson, 239 Ala. 146, 194 So. 176; Rosser v. Rosser, ante, p. 38, 76 So.2d 781. Appeal dismissed.
We think it clear that in Sec. 799, supra, where reference is made to a judgment or decree for the payment of money, it means the same as a judgment or decree for the payment of money as provided in Sec. 793, supra. We held in Hildebrand v. First Nat'l Bank, 221 Ala. 216, 128 So. 219, that a judgment merely for costs is not a judgment for the payment of money within Sec. 799, supra. It follows that the appellant in attempting to take advantage of Sec. 799, supra, did not succeed in invoking the jurisdiction of this court on appeal. So the question arises whether an appeal bond could now be given if desired by the appellant.
Chason Stone, of Bay Minette, for appellee. The statute does not apply to an appeal by a married woman from a decree in equity declaring void a conveyance to her on ground of non-delivery, and an appeal under the statute should be dismissed on motion seasonably made. Code 1940, Tit. 7, § 799; Scott v. Shepherd, 215 Ala. 671, 112 So. 137; Holley v. Harris, 220 Ala. 417, 125 So. 660; Nichols v. Snead, 224 Ala. 324, 140 So. 375; Ex parte Watkins, 25 Ala. App. 419, 148 So. 335; Id., 226 Ala. 634, 148 So. 335; Ex parte Brown, 213 Ala. 7, 105 So. 170; Hildebrand v. First. Nat. Bank, 221 Ala. 216, 128 So. 219. PER CURIAM.