Steele v. Freeman , 250 Ala. 336 ( 1948 )

This appeal is prosecuted by the complainant from a decree of the court in his favor sustaining his demurrer to the cross bill filed by the respondents. Under the uniform rulings of this court, such decree will not support an appeal by the demurrant. Watson v. Jones Bros., 121 Ala. 579, 25 So. 720. This case has been followed in numerous cases, among others, Esslinger v. Herring, 147 Ala. 198, 40 So. 142; Howell v. Howell et al., 171 Ala. 502, 54 So. 601; Pope v. Ledbetter,216 Ala. 302, 113 So. 20; McDonald v. Pearson, 114 Ala. 630,21 So. 534; Tatum v. Tatum, 111 Ala. 209, 20 So. 341. The correct practice in such circumstances is pointed out in Dudley v. Whatley, 245 Ala. 202, 16 So. 2d 192.

In Sandlin et al. v. Anders, 210 Ala. 396, 98 So. 299, cited to support the majority opinion in this case, the bill was filed by Sandlin against Anders and sought a sale of the property for division among the tenants in common. Anders demurred to the bill. The court sustained the general demurrer attacking the bill for want of equity and it was from that decree that the appeal was prosecuted.

In Abrams v. Abrams, 225 Ala. 622, 144 So. 828, the bill was filed by the appellant in that case to cancel a conveyance on the ground of undue influence. The court dismissed the bill and it was from that decree the complainant appealed.

In Bates v. Baumhauer, 239 Ala. 255, 194 So. 520, the bill was filed by Baumhauer against Bates and others. The defendants demurred to the bill and from decree overruling the demurrer, they appealed.

In Pollak v. Stouts Mt. Coal Coke Co., 184 Ala. 331,63 So. 531, the appeal was by the complainant from a decree sustaining a demurrer to his bill and the court held, "Where the appeal is taken from an order sustaining a demurrer only so far as it attacks certain parts of the bill, and there are no cross assignments of error, the appellate court can review the ruling only to the extent the demurrer has been sustained.

"A demurrer to a part of the bill is equivalent to the motion to strike out the part thus objected to, and the sustaining of the demurrer has the same effect as the sustaining of a motion to strike the objectionable portion." There is certainly nothing in that case that authorizes a party to appeal from a decree in his favor.

The writer knows of no decision by this court that sustains the holding of the majority in this case and after diligent search has found none. The holding of the majority is a clear abandonment of the theory in pleading that a demurrer is a single entity and the sustaining of one or more grounds is a sustaining of the demurrer. According to the theory of the majority opinion, each ground assigned is a demurrer and, to illustrate, if 20 grounds are assigned and 19 are good, and the 20th ground is bad, nevertheless if that one ground is overruled, the demurrant may appeal and have this court review the ruling on this single ground.

In Bell v. McLaughlin, 183 Ala. 548, 62 So. 798, the appeal was from a final decree entered on submission of the cause on pleadings and proof and the point involved was whether or not dismissal of the original bill carried with it the cross bill. The ruling here was to the contrary, as in that case the cross bill had independent equity.

Moreover, if the cross bill in this case be treated as a mere answer, the demurrer would not lie to it, nor does the statute authorize an appeal from a decree sustaining or overruling a demurrer to an answer. In the instant case the cross bill clearly contains equity to establish the relation of the respondents as tenants in common with the complainant, and have the land sold for division among the joint owners. The warranty deed made by Mrs. M. A.D. Freeman to her son J. H. Freeman was not void on its face and constituted a cloud on the title. The cross bill had but a single aspect, as above stated, and the allegations of fraud while illy pleaded were clearly sufficient to warrant an amendment alleging that the execution of the said deed was procured by undue influence and was pertinent to the relief which the cross bill seeks and it was not subject to be stricken on motion. Bates v. Baumhauer, 239 Ala. 255,194 So. 520.

For the foregoing reasons, I respectfully dissent from the conclusion and holding of the majority. I am of the opinion that the appeal should be dismissed. Watson v. Jones Bros.,121 Ala. 579, 25 So. 720.