
    (85 South. 16)
    STATE v. JABELES et al.
    (6 Div. 985.)
    (Supreme Court of Alabama.
    Jan. 15, 1920.)
    Appeal and errob <&wkey;102—Decree overruling EXCEPTIONS TO SPECIAL PLEA NOT AP-PEALABLE.
    While Code 1907, § 2838, allowed appeals from a decree overruling exceptions to a special plea, appeals from such a decree are forbidden by the amending act (Acts 1915, p. 137).
    Appeal from Circuit Court, Jefferson County ; Hugh A. Locke, Judge.
    Bill by the Statq of Alabama against the Jabeles Colias Confectionery Company, the Colias Candy Company, Penelope Jabeles, and others to condemn a 'building and lot in the city of Birmingham, because used in and about the manufacture of prohibited liquors and beverages. The respondents herein, the appellees, filed a special plea of res judicata; and from a decree overruling exceptions to the plea, the State appeals.
    Appeal dis- . missed.
    The cause was submitted on a motion to dismiss and on its merits.
    J. Q. Smith, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.
    While section 2838, Code 1907, has been amended (Acts 1915, p. 137), so as to omit the right to appeal from a decree overruling or sustaining exceptions to a plea, yet under section 3115, Code 1907, and section 13 of the prohibition statute, the plea must be treated as a part of the answer and cross-Jiill, and the exception thereto treated as the demurrer.
    Weatherly, Deedmeyer & Birch, of Birmingham, for appellee.
    The amendment to section 2838 wrought by Acts 1915 omitted the right of appeal from a decree of this character, and the appeal must be dismissed. 80 Ala. 345; 119 Ala. 289, 24 South. 750; 197 Ala. 395, 73 South. 46; 161 Ala. 573, 49 South. 1034; 174 Ala. 352, 56 South. 809; 133 Ala. 240, 31 South. 802.
   ANDERSON, C. J.

This appeal is prosecuted by the state from a decree of the circuit court in equity, overruling exceptions to a special plea interposed by one of the appellees to its bill of complaint. While this order or decree was appealable under section 2838 of the Code of 1907, said section was amended by Acts 1919, p. 137, and, as amended, excludes decrees overruling or sustaining pleas.

The appeal must therefore be dismissed.

McClellan, Somerville, and tilomas, JJ., concur.  