Opinion
7 Div. 720.
May 19, 1927. Rehearing Denied June 15, 1927.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
Frank B. Embry, of Pell City, and Goodwyn Goodwyn, of Montgomery, for appellant.
The insertion of the date in the appeal bond was a mere error or mistake, and opportunity for correction should be allowed. Strain v. Irwin, 199 Ala. 592, 75 So. 151; U.S. S. L. Co. v. Leftwich, 132 Ala. 131, 31 So. 474.
M. M. Smith, of Pell City, for appellees.
The appeal is not taken from any decree, and there are no other elements present to show with certainty what decree was intended. The appeal must be dismissed. Strain v. Irwin, 199 Ala. 592, 75 So. 151; U.S. S. L. Co. v. Leftwich, 132 Ala. 131, 31 So. 474.
The security for costs, as well as the certificate of the register, recites that the appeal is from a decree rendered June 28, 1926. We find no decree bearing such date. There are three decrees rendered in June; two June the 4th, and one June the 1st. If there were but one decree in June, we might be able to hold that the date of the security was a clerical error, and that it applied to that decree; or, if but one of the decrees rendered in June was appealable, we might be able to adopt the suggestion of appellant's counsel that the appeal was taken from the appealable decree; but we cannot agree to the contention that the decree of 'June the 4th, which appears last in the record, is the only appealable one. While the other decrees are based on the report of the special register, and are, in the main, confirmatory of same, they operate to settle the equities of the case, as the report establishes and fixes the respective liens and recommends a sale of the property. In fact, they settle the rights of the parties, and all that is left open is to provide for a sale of the property in satisfaction of same. Foley v. Leva, 101 Ala. 399, 13 So. 747. The test of the finality of a decree to support an appeal is not whether the cause remains in fieri, but whether the decree rendered ascertains and declares the rights of the parties and settles the equities. Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939. We are therefore constrained to sustain the appellees' motion to dismiss the appeal, and which is accordingly done. U.S. Savings Co. v. Leftwich, 132 Ala. 131, 31 So. 474.
Appeal dismissed.
ANDERSON, C. J., and SAYRE, GARDNER, and BOULDIN, JJ., concur.