dissent from the conclusion reached on the motion to dismiss the bill for want of equity, and cannot concur in the reasons given by which that conclusion was reached. Tyson, J., desires to say further that the record shows that the submission on the motion to dismiss was in vacation. Since the case of Kingsbury v. Milner, 69 Ala. 505, the rule has been that notwithstanding the facts shown by the bill, after considering all amendable defects as cured, do not make a case for equitable relief, still as the right of amendment is conferred by statute, the court cannot dismiss the bill without affording to the complainant an opportunity to exercise this right. 'Code, § 704 et seq. And this opportunity is not afforded when the submission is for decree in vacation. “To hold otherwise would be, in effect, to adopt the legal dogma of professional infallibility, which would render nugatory the necessity of all amendments” and to strike down the right conferred by the 'statute.
In Kingsbury v. Milner, supra, the bill was filed by a vendor of land who had conveyed with warranty to enforce the vendor’s lien and to make the defendant responsible for waste. It appeared from the bill that *591his vendees liad been evicted by title paramount, and tlmt tliey were suing him for breach of covenant in Ms deeds, and it was sought to enjoin these suits. The court said: “It requires no argument to show that a bill seeking to enforce such a claim is entirely devoid of equity ” But the decree was reversed because the chancellor on sustaining the demurrer to the bill, dismissed the bill in vacation without giving leave to amend. This doctrine was applied and enforced in the following cases: Stoudenmire v. DeBardelaben, 72 Ala. 300; Shackelford v. Bankhead, Ib. 476; Massey v. Modawell, 73 Ala. 421; Goodlett v. Kelly, 74 Ala. 213; Gilmer v. Wallace, 75 Ala. 220; Wright v. Dunklin, 83 Ala. 317; Kyle v. McKenzie, 94 Ala. 236; Martin v. Kelly, 113 Ala. 577.
This rule Inis no application to a dismissal in term time when the right to amend is not claimed. For the reason that the party being in open court, has the ap-portunity to exercise his right and his failure to ask leave to amend will be construed as a waiver of' that right.—Buford v. Ward, 108 Ala. 307.
The complainant’s right to amend being a matter of right and limited only to his. not making an entirely new case or a radical departure from his original cause of action nr working an entire change of parties, I do not see how it is x>ossible to say in advance of the amendment which he may offer, that he has no such right.
I have been unable to And, after diligent search, a single case in our reports where a decree dismissing a bill in vacation, without giving the complainant the right to amend, has been sustained. And I do not believe that one can be found. This point was not considered by Justice Dowdell in his opinion. He seems either to have overlooked it or to have regarded it not worthy of consideration.