Opinion
77-510.
March 23, 1979.
Appeal from the Circuit Court, Walker County, G.H. Wright, Jr., J.
James L. Beech, Jr. of Tweedy, Jackson Beech, Jasper, for appellants.
Tom Nicholson and Herman W. Maddox of Maddox, MacLaurin, Nicholson Thornley, Jasper, for appellees.
Plaintiffs sought to have a Walker County tax on diesel fuels declared invalid. The circuit court temporarily enjoined the County from collecting the tax. The County answered and counterclaimed for damages for lost revenue as a result of the injunction. Prior to the circuit court ordered the plaintiffs' complaint and the counterclaim "severed," indicating that it would later, if necessary, consider granting a motion for a jury trial on the question of damages. The court then took evidence ore tenus on the question of the validity of the tax and entered a judgment for the defendants upholding the tax. Plaintiffs appealed from this judgment. Defendants' counterclaim is currently pending before the circuit court, where it is being handled as a part of the same action now on appeal.
From our review of the record it appears that the circuit court, while it stated that it was granting a "severance" as provided in Rule 21, ARCP, actually granted a motion for a separate trial under Rule 42 (b), ARCP. Although it used the term "severance," the circuit court's handling of the case is more consistent with Rule 42 (b). As we noted in Key v. Robert M. Duke Insurance Agency, 340 So.2d 781 (Ala. 1976), "The substance of the court's action, not its form, controls."
When the trial court grants separate trials of single claims under Rule 42 (b), a judgment entered as to fewer than all the claims or parties is not generally appealable absent a Rule 54 (b) determination. Key, supra. Consequently, the appeal is dismissed for further proceedings.
DISMISSED.
TORBERT, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.