Murphey v. Brewer

Full title: MRS. JAY B. MURPHEY, JR. v. SEBERT BREWER, et al

Court: Supreme Court of Tennessee, at Knoxville, September Term, 1956

Date published: Dec 7, 1956

296 S.W.2d 884 (Tenn. 1956)

296 S.W.2d 884

Opinion

Opinion filed December 7, 1956.

APPEAL AND ERROR.

Where some of the defendants demurred to bill, and demurrer was sustained, and bill was dismissed as to those defendants, but not as to all defendants, appeal by complainant did not lie and would be dismissed. T.C.A. sec. 27-305.

FROM HAMILTON

FRANK M. GLEASON, Rossville, Ga., and ROBERTS WEILL, Chattanooga, for complainant.

MILLER, MARTIN, HITCHING TIPTON, Chattanooga, for defendants.

Suit was filed against several defendants. Some of the defendants demurred to the bill. The Chancery Court, Hamilton County, M.B. Finkelstein, Chancellor, entered an order sustaining the demurrer and dismissing the bill as to the defendants, who demurred, but not as to all defendants, and the complainant appealed, and motion was made to dismiss the appeal. The Supreme Court, Swepston, Justice, held that appeal did not lie.

Motion to dismiss appeal sustained.

MR. JUSTICE SWEPSTON delivered the opinion of the Court.

There is a motion to dismiss complainant's appeal in this case based upon the following factual situation. The suit was filed by Mrs. Murphey against Brewer and three Coca Cola Bottling Companies. Some of the defendants demurred to the bill which demurrer was sustained and the bill dismissed as to those defendants but not as to all defendants.

Gibson's Suits in Chy., 4th ed., sec. 1265, states, "An appeal by the complainant will not lie, however, from a decree dismissing the bill on demurrer as to some of the defendants or overruling a plea in abatement, but it will lie on application of a defendant whose demurrer has been overruled, the cause remaining in the Chancery Court as to the other defendants." (Emphasis ours.) Also — see Hunter v. Gardenhire, 78 Tenn. 87.

In Isreal v. Guy, 188 Tenn. 485, 486, 221 S.W.2d 525, 526, it is said: "`Moreover, not even a discretionary appeal, otherwise authorized under section 9038 lies from a judgment or decree sustaining a demurrer and dismissing as to one or more of the defendants and leaving the case undisposed of in the trial court as to the others.'" The above authorities and others are cited.

There is nothing to the contrary in T.C.A. sec. 27-305, including the amendment by the Act of 1955, Chapter 172, which amendment appears in Cumulative Supplement to said Code.

It is, therefore, necessary to sustain this motion and dismiss the appeal.