Opinion
7 Div. 996.
May 14, 1931.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Inzer, Inzer Davis and O. R. Hood, all of Gadsden, for appellants.
From the form and subject-matter of the pleading and relief sought, it is necessarily an original bill and should be so treated regardless of the style given it by appellee. Code 1923, §§ 9457, 9472, 6079; Whilden v. Bank, 64 Ala. 1, 38 Am.Rep. 1; Rogers v. Brooks, 99 Ala. 31, 11 So. 753; Ruffin C. T. Co. v. Rich, 214 Ala. 622, 108 So. 600. See Hinson v. Naugher, 207 Ala. 592, 93 So. 560.
Alto V. Lee and Culli, Hunt Culli, all of Gadsden, for appellee.
The decree overruling demurrer to the petition in this cause is not appealable. Code 1923, § 6079; Devane v. Smith, 216 Ala. 177, 112 So. 837.
The appeal in this case is prosecuted by R. H. Hart and Loui Hart, individually and as executors of the last will and testament of Della Hart, deceased, from an interlocutory decree of the circuit court, sitting in equity, entered in the matter of the estate of said Della Hart, deceased, overruling the demurrers of the appellants to a petition filed by Viola Hart Greet, one of the legatees under the will, praying for an order requiring the executors to give bond, file inventories, and restraining them from disposing of the real property belonging to said estate, pending further orders of the court.
The case was submitted on motion of the appellee to dismiss the appeal, and on the merits.
The decree appealed from is not an appealable order or decree within the statute authorizing appeals from certain interlocutory decrees in equity cases, and the appeal does not confer jurisdiction on this court to review the rulings questioned by the assignments of error. Code 1923, § 6079; Devane v. Smith, 216 Ala. 177, 112 So. 837; McKenzie v. Jensen, 200 Ala. 191, 75 So. 939.
Appeal dismissed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.