Alabama Water Service Co.v.City of Anniston

Supreme Court of AlabamaMar 22, 1928
217 Ala. 271 (Ala. 1928)
217 Ala. 271116 So. 124

7 Div. 788.

March 22, 1928.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Cabaniss, Johnston, Cocke Cabaniss, of Birmingham, and Knox, Acker, Sterne Liles, of Anniston, for appellants.

In view of the decision, briefs need not be here set out.

James F. Matthews, of Anniston, for appellee.

When the equity of a bill has been tested and upheld by the Supreme Court on appeal from an interlocutory order or decree, no other appeal can be taken from any subsequent interlocutory order or decree. Code 1923, § 6080.

Section 6080 of the Code of 1923, new to said Code and being a codification of the Act of 1923, p. 250, says:

"Whenever the equity of a bill, complaint or petition has been tested and upheld by the Supreme Court on an appeal from any interlocutory order, judgment, or decree, no other appeal can be taken from any subsequent interlocutory order, judgment or decree; but the rulings of the trial court on any such interlocutory orders, judgments or decrees may be reviewed by the Supreme Court on appeal from the final judgment or decree."

This provision was evidently intended to serve some purpose, and we think that purpose was to give some finality to a decree settling the equity of a bill and to cut off continuous and frequent appeals from interlocutory decrees or orders.

This is the third appeal in this case. 207 Ala. 497, 93 So. 409, and 215 Ala. 120, 110 So. 36. True, the first appeal involved the enforcement of a different contract from the one sought to be enforced in the second appeal, and therefore the ruling on the first appeal did not necessarily settle the same equities as involved in the second appeal. But, as we understand, this appeal involves practically and substantially the same case as considered and decided upon the second appeal. 215 Ala. 120, 110 So. 36. True, the bill was amended after the second appeal and before the present one, but in no material aspect as would affect the equity of the bill. The amendment simply made the Alabama Water Service Company a party respondent, averring a purchase by it of the plant during the lis pendens with the further averment that the contract of purchase expressly provided that it was subject to the contract rights of the complainant and the result of the pending litigation. The other new party is the New York Trust Company with the averment that the Alabama Water Service Company has conveyed or is about to convey the property to said trust company to secure a bond issue. The amendment in no wise changed the equity of the bill as against the Alabama Water Company, the appellant on the second appeal. True, these new respondents may be entitled to their day in court and to a hearing, but they are given the right to have the decree upon their demurrers reviewed upon an appeal from a final decree and the above-quoted statute deals only with a question of practice and procedure and not the right to defend. Moreover, a purchaser pendente lite is subject to the hazards of the pending litigation and is bound by any decree that is afterwards rendered against the party litigant. Morton Bliss v. New Orleans R. R., 79 Ala. 590.

Indeed, our recent case of Shields v. Hightower, 216 Ala. 224, 112 So. 834, invokes the above-quoted statute against a second appeal from an interlocutory decree upholding the equity of the bill whether subsequently amended or not, but we need not go that far in this case since the amendment did not change the equity of the bill as considered in 215 Ala. 120, 110 So. 36.

We think and so hold that the present interlocutory decree from which this appeal is attempted will not support the appeal, and which is accordingly dismissed.

Appeal dismissed.