Supreme Court of Alabama, 1917

Wise v. Spears

Supreme Court of Alabama · Decided November 15, 1917 · Somerville, Anderson, Mayfield, Thomas

76 So. 869; 200 Ala. 695; 1917 Ala. LEXIS 519 (Southern Reporter)

Cases that cite this one

26 later published cases cite this decision. The 25 that cite it most often are listed here.

State Ex Rel. Garrow v. Grayson (Ala. 1929)
Martin v. Alabama Power Co. (Ala. 1922)
Campbell v. Water Wks. Gas Bd. of Town of Red Bay (Ala. 1973)
Minich v. Gem State Developers, Inc. (Idaho 1979)
Vacalis v. Lowry (Ala. 1966)
Smith v. Hixon (United States District Court for the Southern District of Alabama 1956)
Smith v. State (Ala. Ct. App. 1955)
Coon v. Henderson (Ala. 1940)
City of Roanoke v. Fain (Ala. Ct. App. 1938)
Alston v. Marengo County Board of Education (Ala. 1932)
Webb v. French (Ala. 1932)
Cooper v. Cooper (Ala. 1927)
Brown v. McKnight (Ala. 1927)
Lathrop Lumber Co. v. Pioneer Lumber Co. (Ala. 1922)
Wood v. Finney (Ala. 1922)
State Ex Rel. Wright v. Kemp (Ala. 1921)
Long v. Winona Coal Co. (Ala. 1921)
Converse v. Converse (Fla. 1921)
Akel v. Dooley (Fla. Dist. Ct. App. 1966)
Sawyer v. Hinton (Fla. 1948)
W. T. Rawleigh Co. v. Cone (Ala. Ct. App. 1940)
Glass v. Layton (Fla. 1937)
Wallace v. Screws (Ala. 1932)
Clonts v. Spurway (Fla. 1932)
Cook v. J.I. Case Plow Works Company (Fla. 1923)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

SOMERVILLE, J.

This proceeding is by motion to substitute a lost record, and thereupon to amend a final judgment nunc pro tunc.

[1] The judgment appealed from is, omitting prefatory recitals, as follows:

“It is considered and adjudged by the court that the demurrer is well taken, and that it be and is hereby sustained by the court, and the defendants have and recover of the plaintiffs the costs of this cause, for which execution may issue.”

In Eslava v. Jones, 79 Ala. 287, it is said:

“The only judgment found in this record is an order of the court sustaining defendant’s demurrer to plaintiff’s complaint, and adjudging the costs of the motion against plaintiff. This is not a judgment disposing of the cause. There is no final judgment upon which an appeal will lie, and the motion to dismiss the appeal is granted.”

[2] That case is decisive of this appeal, and, the matter being jurisdictional, we are bound to dismiss the appeal ex mero motu. Meyers v. Martinez, 162 Ala. 562, 50 South. 351.

Appeal dismissed.

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

Case-law data current through December 31, 2025. Source: CourtListener bulk data.