This is an appeal from a decree overruling demurrers to a bill in equity and to various aspects of the bill.
The decree overrules the demurrer to the amended bill as a whole, asserting that there are no grounds of demurrer addressed to the bill as a whole. It then separately overrules the demurrer addressed to certain named aspects of it. There is only one assignment of error,—that of overruling "the respondents' demurrer to the complainants' original bill of complaint as amended." With respect to such an assignment, we observed in Hays v. McCarty, 239 Ala. 400, 195 So. 241, 244, that "when the demurrer is addressed separately to distinct aspects of the bill on which separate relief is sought, it is as though it were addressed to separate counts of a complaint. There should be * * * separate assignments of error in this Court in each such respect. When so, the ruling on the demurrer to each aspect may be separately considered from the others. There may be error as to one and not as to others. Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42." Cf. Shaddix v. Wilson, 261 Ala. 191, 73 So.2d 751.
As noted by the trial court, there are no grounds of demurrer addressed to the bill as a whole. A demurrer to the bill must set forth the grounds, unless the equity of the bill is sought to be tested which may be done by a general demurrer "`that there is no equity in the bill.'" Equity Rule 14, Code 1940, Tit. 7 Appendix. The only rulings on the demurrer which are available for review are those features of it which relate to the various aspects of the bill, and they are not assigned as error.
It appears that on the appeal from the order for a temporary injunction the sufficiency of the bill to withstand attack on its equity must be considered, McHan v. McMurry, 173 Ala. 182, 55 So. 793, and therefore the trial court had no power to hear and act on the demurrer to the bill, at the time it was done in the absence of an abandonment of the appeal expressly or by implication. There is nothing to show an abandonment of that appeal at the time the court acted on the demurrer. So that it had no authority to act on the demurrer and its action is void and will not support an appeal. Ex parte City Council of Montgomery, 114 Ala. 115, 14 So. 365; Gibson v. Edwards, 245 Ala. 334, 16 So.2d 865; Ex parte Taylor, 251 Ala. 387, 37 So.2d 656; Francis v. Scott, supra.
The appeal should be dismissed.
The foregoing opinion was prepared by Foster, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and SPANN, JJ., concur.