# CHERRY INVESTMENT CORPORATION v. Folsom > Supreme Court of Alabama · March 29, 1962 · 273 Ala. 575 URL: https://www.frixlaw.com/law-library/cases/9673159 ## Case - **Full name:** CHERRY INVESTMENT CORPORATION, Lewis R. Donelson, III, L. S. Rainer, Jr., and George C. Wilkinson v. Malissa Carney FOLSOM Et Al. - **Court:** Supreme Court of Alabama - **Decided:** March 29, 1962 - **Citations:** 273 Ala. 575; 143 So. 2d 181; 1962 Ala. LEXIS 419 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Simpson, Goodwyn, Coleman - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9673159 ## Opinion text On Rehearing. In our original opinion, supra, we did not pass upon the question of jurisdiction raised by this appellant’s plea in abatement, pointing out that there had been no ruling on the plea. We treated the appeal as though all of the appellants alike charged error in the decree denying the several motions to dissolve the temporary injunction on the ground that the bill did not contain equity. Separate applications for rehearing have been filed by the corporate appellant and by the individual appellants. Addressing ourselves first to the application of Cherry Investment Corporation, this appellant is correct in the statement that we were in error in so treating the appeal. On re-examination of the record and briefs ' we find that the Cherry Company made no general appearance in the case, but appeared specially by interposing its plea to the ju *578 risdiction and a motion to discharge the injunction as to it. Both the plea and motion stated that the Cherry Company is a foreign corporation doing business alone in the county of Coffee by agent and that in view of Section 232 of the Constitution it is not suable in Mobile County. In no wise did this appellant contest the equity of the bill. By a separate decretal order the trial court passed upon the plea and motion of the Cherry Company. Reciting at the outset that this respondent’s plea had not been set down for hearing, the order stated that the matter of the motion to discharge coming on to be heard and having been heard and argued by the parties the court denied the motion for discharge. Whether the initial declaration that the plea had not been set down for hearing prior to the hearing set for the motions to discharge or dissolve the injunction meant that the respondent had not set the plea down for hearing, or the court had not set it down, is not clear, but the end result must be the same. Since the substance of the plea and the motion to discharge was the same, the effect of the order was to decide the question of jurisdiction adversely to the corporate respondent. We are thus met at the threshold with the question of jurisdiction of this court to entertain this respondent’s appeal. In stating and applying the rule that the appropriate method of testing a plea of this nature is to set it down for hearing and have the court determine whether or not it is sufficient, we have consistently held that, whatever method was followed, an order sustaining or denying such a plea was not appealable. We have also held that such ruling could not be assigned as error upon appeal from another interlocutory decree. Bullen v. Bullen, 231 Ala. 192 , 164 So. 89 ; Templeton v. Scruggs, 234 Ala. 146 , 174 So. 237 ; Thomas v. State, 241 Ala. 381 , 2 So.2d 772 ; Little v. Little, 249 Ala. 144 , 30 So.2d 386 , 171 A.L.R. 1399 ; Gordon v. Central Park Little Boys League, 270 Ala. 311 , 119 So.2d 23 . Decrees sustaining, dissolving or discharging injunctions are interlocutory. Code 1940, Title 7, § 757. On its appeal from the decree affecting it the respondent Cherry Company assigned as error only the denial of its motion, making no reference to the ruling on the plea, and the brief argued the error assigned, relying upon authorities to the effect that a foreign corporation might be sued only in a county in which it does business. Appellant’s brief on rehearing shows an awareness that a ruling on a plea such as here involved is not appealable. The question then arises whether the appeal from the ruling on motion to discharge the injunction served to bring the question before this court. We must answer this in the negative. The issue in both plea and motion to discharge was the same, the plea, or a copy of it, being filed along with the motion. For this court to respond to the error assigned would be to do by indirection that which it may not do directly. Even if this were not so, there is a further impediment in the way of our deciding the question. Neither the decree, nor the record elsewhere, discloses the evidence, if there was such, or the argument upon which the trial court based its decretal order. In view of the conclusion we here reach, it results that our original judgment on the separate appeal of Cherry Investment Corporation should have been a dismissal of the appeal rather than affirmance. The original judgment will, therefore, be corrected by affirming as to the appeals of the individual respondents and dismissing the appeal of the corporate respondent, and its application for rehearing is overruled. As to the applications of the individual appellants, we are not persuaded that we should recede from or add to our original deliverance affirming the decretal orders appealed from by them. Judgment corrected and application of Cherry Investment Corporation overruled. Applications for rehearing of the individual appellants overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673159. Public record. Not legal advice.