Anders Bros. v. Latimer

• Decision Date: 11 January 1917
• Docket Number: 6 Div. 469
• Citation: 198 Ala. 573,73 So. 925
• Parties: ANDERS BROS. et al. v. LATIMER et al.
• Court: Alabama Supreme Court

73 So. 925

198 Ala. 573

ANDERS BROS. et al. v. LATIMER et al.

6 Div. 469

Supreme Court of Alabama

January 11, 1917

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

Bill by E.S. Latimer and others against Anders Brothers and others. From a decree holding insufficient a special plea to abate or stay the suit on the ground of pendency of bankruptcy proceedings against respondents, the latter appeal, and complainants move to dismiss on the ground that the case has become moot. Reversed and remanded, with directions.

Moody &amp Moody, of Tuscaloosa, for appellants.

Monette & Taylor, of Tuscaloosa, for appellees.

MAYFIELD J.

Appellees as creditors of Anders Bros., a partnership, filed this their bill against appellants, under section 4295 of the Code, to have declared to be a general assignment a mortgage executed by their debtors to the First National Bank of Tuscaloosa. The respondents appeared specially and moved to dismiss the bill. This motion being overruled, they filed a special plea to abate or stay the suit on the ground of pendency of an involuntary bankruptcy proceeding against respondents Anders Bros. at the time the bill was filed and at the time of filing the plea. A hearing was had on the sufficiency of this plea, and it was by the trial court, on the 28th day of August, 1916, held insufficient. On the 5th day of September 1916, respondents appealed; their obligation or security for costs being approved by the register on this date. On the 2d day of October, 1916, complainants filed a replication to this plea, setting up the fact that the bankruptcy proceeding relied upon in the plea had been dismissed and was therefore no longer pending. Thereupon appellees filed a motion in this court to dismiss appellants' appeal, because the ground for abating or staying the proceeding no longer existed, and that the case here had become a moot one.

The appeal to this court, of course, removed the case from the county court to the Supreme Court, and appellees could not affect the result here by filing a replication in the court below; nor could the ruling on the appeal in this court be influenced by the dismissal of the proceedings in the bankruptcy court after the appeal was taken--that dismissal could not cure the error of the lower court (if error it was) in holding the plea insufficient. Ex parte Hood, 107 Ala. 520, 18 So. 176; Allen v. Allen, 80 Ala. 154.

An "appeal," in this state, is the mode of commencing a new and independent suit in this court, the object of which is a revision of the proceedings of the inferior court. It is the mode of initiating a judicial proceeding before a court of competent jurisdiction. Mazange v. Slocum, 23 Ala. 668; Cook v. Adams, 27 Ala. 294. The appeal, and notice of it, stand in the same relation to the revising suit in this court in which the summons and complaint now stand, and in which the capias ad respondendum formerly stood, to the suit in the circuit court. They are alike modes of initiating a suit, the law-appointed means of acquiring jurisdiction of the court. The parties may, in the circuit court, waive the antecedent proceedings entirely, and submit themselves to the jurisdiction of the court. Hodges v. Ashurst, 2 Ala. 301; Bissell v. Carville, 6 Ala. 503; Caller v. Denson, Minor, 19; Thompson v. Lea, 28 Ala. 459; 7 Mayf.Dig. 30.

Mr. Elliott, in his valuable work on Appellate Procedure, has thus stated the effect of an appeal upon the proceedings in the lower court:

"The overwhelming weight of authority is that an appeal, properly perfected, removes a case wholly and absolutely from the trial court and places it in the higher tribunal. It is difficult to conceive how it could be otherwise, since it is not possible that two courts can have authority over a single case at the same time. The case must, of invincible necessity, be in the higher court or in the lower court, for it cannot be in both courts. As the authority of the inferior yields to the superior, the case is, for all purposes connected with the consideration and decision of the questions involved in it, completely within the jurisdiction of the appellate tribunal. The right to order process to enforce the judgment remains in the trial court, where there is no supersedeas or order staying proceedings; but all jurisdiction over questions involved in the litigation and embraced by the judgment terminates with the removal of the case to the appellate tribunal. The loss of jurisdiction is so complete as to require a party who seeks relief from any error, except an error in making the record or in omitting something from the record, to apply to the higher court. After the cause leaves the lower court, it cannot act upon any question involved in the appeal." Section 541.

No act on the part of counsel for appellees, not consented to by appellants, after appeal taken, can cure the error of the trial court in holding the plea insufficient, or give cause for dismissing the appeal in this court.

The plea in this case alleges that the same counsel for appellant, before filing this bill, had instituted an involuntary bankruptcy proceeding against Anders Bros., and that the proceeding was pending when this bill was filed and when the plea was filed. While the bankruptcy court might not, alone, have been...