On petition for re-hearing it is pointed out that this Court overlooked the passage of Chapter 14658, Acts of 1931, commonly known as the 1931 Chancery Act, which among other things provides that if at any time it appears that a suit commenced in equity should have been brought at law, it shall be forthwith transferred to the law court of competent jurisdiction and be there proceeded with, with only such alteration in the pleadings as shall be essential.
In our former opinion we held that the Circuit Court erred in holding that a cause of action did not exist under the allegations of the bill, but that the order sustaining the demurrer was correct because the action would have been commenced at law and not by bill in equity, there being a complete remedy at law. The 1931 Chancery Act was in effect at the time the order of the Circuit Court sustaining the demurrer was made. This being true the court below should have made an order transferring the cause to the law side of the docket of the court. In other words a cause was commenced in equity that should have been commenced in law.
For the purpose prayed, a re-hearing is granted and the judgment of this Court is amended to read that the decree of the Circuit Court be reversed insofar as it dismisses the bill, and the cause is remanded with directions to the Circuit Court to transfer the cause to the law court of competent *Page 322 jurisdiction, there to allow such alterations of the pleadings as shall be essential and for further proceedings as the parties may be advised.
It is so ordered.
WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.
DAVIS, C. J., disqualified.