Opinion
6 Div. 15.
March 10, 1932.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Mullins, Pointer Deramus, of Birmingham, for appellant.
In view of the decision, it is not necessary that brief be here set out.
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.
The final decree from which the appeal was taken had no more effect than to reform the description of land in a deed executed by the respondents to complainant, and require the delivery of possession to complainant by respondents of the land so described, and that respondents be taxed with the costs of the cause.
The respondents are a married woman and her husband. No security or bond for the costs of appeal was given. The only appellant is the married woman, and she claims the right of appeal without bond or security by authority of section 6138 of the Code. That section provides for such an appeal by a married woman only when the judgment or decree subjects to sale her property, or when it is for the payment of money, or requires the performance of some act by her.
The decree in effect is for the recovery of land, and to that extent is not within the statute, for such a decree neither subjects her property to sale nor requires the performance of an act by her. Scott v. Shepherd, 215 Ala. 671, 112 So. 137; Hildebrand v. First Nat. Bank, 221 Ala. 216, 128 So. 219.
In the latter case we also held that a judgment for costs in such a suit is not for the payment of money within the meaning of that provision of law, so as to authorize an appeal on the equities decreed, without security for costs of appeal.
The time has elapsed now within which she may execute an appeal bond. The motion to dismiss was made in ample time to permit her to execute such a bond if she so desired.
We know no reason why the motion to dismiss the appeal should not be granted.
Appeal dismissed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.