Public-domain · open source
OpenJurist

200 Ala. 695

76 So 869

Wise v. Spears

Supreme Court of Alabama

Decided November 15, 1917

Supreme Court of Alabama · decided 1917-11-15

<p>1. Appeal and Error <&wkey;78(3) — Orders Appealable-Orders Sustaining Demurrer.</p> <p>A judgment sustaining a demurrer to the complaint is not a final judgment from which an appeal will lie.</p> <p>2. Appeal and Error <&wkey;792 — Dismissal on Court’s Own Motion.</p> <p>An appeal from a judgment sustaining a demurrer will be dismissed by the court ex mero mo tu; the matter being jurisdictional.</p>

Relies on Meyers v. Martinez · Eslava v. Jones

Good law ✅— No negative treatment on recordhow we know

Appeal dismissed · Decided 1917-11-15

How this case has been cited

Cited by 33 later decisions — most recently February 1979 · most notably Minich v. Gem State Developers, Inc. (1979), Lathrop Lumber Co. v. Pioneer Lumber Co. (1922)

31 state decisions

901917192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

SOMERVILLE, J.

¶1 This proceeding is by motion to substitute a lost record, and thereupon to amend a final judgment nunc pro tunc.

¶2 [1] The judgment appealed from is, omitting prefatory recitals, as follows:

“It is considered and adjudged by the court that the demurrer is well taken, and that it be and is hereby sustained by the court, and the defendants have and recover of the plaintiffs the costs of this cause, for which execution may issue.”

¶3 In Eslava v. Jones, 79 Ala. 287, it is said:

“The only judgment found in this record is an order of the court sustaining defendant’s demurrer to plaintiff’s complaint, and adjudging the costs of the motion against plaintiff. This is not a judgment disposing of the cause. There is no final judgment upon which an appeal will lie, and the motion to dismiss the appeal is granted.”

¶4 [2] That case is decisive of this appeal, and, the matter being jurisdictional, we are bound to dismiss the appeal ex mero motu. Meyers v. Martinez, 162 Ala. 562, 50 South. 351.

¶5 Appeal dismissed.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.
/200/ala/695 · .json · Public domain