Plaintiff below filed a motion for a decree on bill and answer on the ground that the answer is insufficient as a defense, under Section 40 of the 1931 Chancery Act which is as follows:
"The plaintiff may, within ten days after the filing of the answer, or within such further time as the court may allow, move for a decree on bill and answer, and if the motion be overruled the plaintiff shall have the right to proceed to trial, notwithstanding the motion or order thereon; and, if the answer be found insufficient as a defense but amendable, the court may permit it to be amended on such terms and conditions as may be equitable."
The chancellor granted the motion, ordered testimony to be taken as to a reasonable solicitor's fee for the plaintiff's solicitor in the cause, and ordered that: "the entering of the final decree pursuant to the granting of said motion for decree on bill and answer be deferred until after the said report has been filed."
Defendants applied for an interlocutory writ of certiorari under Rule 34, to review the order made on the motion for a decree on bill and answer. *Page 727
Plaintiff filed a confession of error as to the portion of the order directing testimony to be taken on the claim for attorney fees. This operates as a withdrawal or abandonment of the features of the bill of complaint respecting such attorney fees, which may not be further considered, even though interlocutory certiorari be denied.
This Court has only appellate jurisdiction in chancery causes. The order made by the chancellor granted the motion "for a decree on bill and answer on the ground that the answer is insufficient as a defense"; but if the chancellor determined what decree he would render, no such decree was entered to make it a subject of appellate review.
An order granting a motion "for a decree on bill and answer on the ground that the answer is insufficient as a defense," is not such "a decree on bill and answer" as is contemplated by the statute above quoted.
The chancellor who made the order has since died; and as the plaintiff has in effect abandoned the allegations of the bill of complaint relative to attorney fees, the cause now stands to be heard, considered and adjudicated by another chancellor in due course.
Rehearing denied, and the cause remanded.
WHITFIELD, BROWN, BUFORD, CHAPMAN and THOMAS, J. J., concur.
Chief justice TERRELL not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court. *Page 728