Franklin v. Georgia Casualty Co. , 225 Ala. 58 ( 1932 )

The jurisdiction conferred by section 8377 of the Code on courts of equity to enforce liability against insurance carriers is statutory and limited, and, the averments of the bill not making a case within this statutory jurisdiction, the only decree disposing of the case that the court was authorized to render was one dismissing the bill. Williams v. Nelson et al., 228 Mass. 191, 117 N.E. 189, Ann. Cas. 1918D, 538; Tillery v. Tillery, 217 Ala. 142, 115 So. 27; Continental Auto Insurance Underwriters v. Menuskin et al., 222 Ala. 370,132 So. 883.

The decree of the court from which the appeal was prosecuted was, therefore, not affected with error, and it would be an unwarranted assumption of authority for this court to reverse that decree and grant relief to the complainant, although the parties agreed that the trial court might assume jurisdiction and settle the controversy between the parties.

The cases cited by appellant in brief on the application for rehearing, Marsh et al. v. Rogers, 205 Ala. 106, 87 So. 790; Penny v. British American Mortgage Co., 132 Ala. 357,31 So. 96; and American Trust Co. v. Butler (C.C.A.) 47 F.(2d) 482, are therefore inapt, and do not sustain appellant's contention.

The circuit court, in equity, had authority, under the statute authorizing transfer of cases from the equity docket to the law docket, to transfer the case to the law docket, or, if the decree had erroneously granted relief to complainant, this court, on appeal, would have reversed that decree and remanded the case for such further proceedings. Continental Auto Insurance Underwriters v. Menuskin et al., supra.

We have re-examined the questions presented on appellees' application for rehearing and adhere to the holding of the opinion heretofore promulgated.

Both applications are therefore overruled.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.