
    LEHMAN, DURR & CO. vs. FORD et al.
    [APPEAL EKOM DEOBEE DISMISSING CEOSS-BILL BEEOKE EINAL DETEBMINATION OP OBIGINAL BILL.]
    1. Oroas-MU, regularly filed; when appeal lies from decree MsmAssing. — A cross-bill,- regularly filed, is so far an independent suit as to authorize an appeal from a decree dismissing the same on demurrer for want of equity before the final determination of the original bill.
    Appellees, on the ground that this appeal was prematurely taken, moved to dismiss it. The appeal was taken from a decree of the chancery court of Montgomery, dismissing a regular cross-bill on demurrer for want of equity before the final determination of the original bill. Appellants contested the motion, and also petitioned for a mandamus to compel the restoration and reinstatement of the cross-bill to the docket. The points decided are sufficiently stated in the opinion.
    Elmobe & Gunter, for motion to dismiss appeal.
    Rice, Chilton & Jones, contra.
    
   PETERS, J.

This is a motion to dismiss this appeal, because tbe same has been prematurely taken. And in connection witb tbis motion to dismiss, there is also an application for mandamus to compel tbe reinstatement and restoration of tbe cause to tbe docket in tbe court below.

Tbe bill in tbis case is a cross-bill, regularly filed as such, and not an answer to an original bill in chancery turned into a cross-bill under our statute. It is, then, not a mere statutory proceeding, to be governed by tbe rules prescribed by tbe statute, or growing out of it. Such a bill is an auxiliary suit, in which tbe complainant may be entitled to independent relief connected witb tbe matters of tbe original bill. Tbe cross-bill is a suit which terminates in a final judgment. — Story Eq. Pl. §§ 389, 398. And it is served, and answered, and proceeded in just , as if it were an original bill, until it is finally disposed of. — 3 Daw. Ch. Pr. pp. 1746-7. In Brooks v. Woods, such a bill has been treated as a separate suit so far as to allow an appeal from an order of dismissal on sustaining a demurrer for want of equity. — 40 Ala. 538; Story Eq. Pl. §§ 628, 630, 632. This is a convenient practice, and we see no sufficient reason to overrule it. La the practice of the English courts, á cross-bill may be treated as a separate suit, and filed in a different court. — 3 Dan. Ch. Pr. p. 1746, note 2. We therefore think that the appeal in this case ought to be retained. If it is, the necessity for a mandamus is removed.

[Nous bx Reporter. — The opinion in this ease was delivered at the June term, 3871, hut was omitted from the 46th volume of Reports on account of a want of space.]

The mandamus is denied, with costs, and the motion to dismiss is denied, with costs.  