Averett v. Powell
| Decision Date | 19 November 1953 |
| Docket Number | 3 Div. 644 |
| Citation | 69 So.2d 278,260 Ala. 158 |
| Parties | AVERETT et al. v. POWELL et al. |
| Court | Alabama Supreme Court |
Samuel H. Rubin and Aaron Fellman, Detroit, Mich., and Bernard Lobman and Hartwell Davis, Montgomery, for appellants.
Prestwood & Prestwood, Andalusia, and Robt. H. Jones, Evergreen, for appellees.
Ralph Powell and Leila A. Powell, complainants below, appellees here, filed a bill of complaint in the circuit court of Conecuh County, in equity, on August 31, 1951, praying that certain lands in said county be sold for division among the joint owners. The bill alleges that complainants and respondents (13 in number) are the joint owners and tenants in common of said land, which cannot be equitably divided among them in kind. On December 21, 1951, three of the respondents, Tom Averett, Jr., Lolaret Averett, and Leila Averett, filed a cross-bill praying that they be declared the owners in fee of said property to the exclusion of complainants and the other respondents. It is alleged in the cross-bill that the cross-complainants, appellants here, 'caused to be filed in the Circuit Court of Conecuh County, Alabama, a complaint in Equity, reciting in substance the allegations contained in this cross-bill and seeking to be determined to be the owners of said property as hereinbefore alleged, free of any claims of some of the cross-respondents herein named, and who were respondents in said suit; that the Supreme Court of Alabama determined that the complaint of these cross-complainants, and as in this cross-complaint repeated in substance, was meritorious and that these cross-complainants were entitled to be heard thereon'. The bill of complaint there referred to was filed in 1939, and the decision of this court there mentioned was rendered on October 8, 1942, in the case of Averett v. Averett, 243 Ala. 357, 10 So.2d 16. In that case the appeal was from a decree overruling a demurrer to the bill, which decree was here affirmed. Thereafter, on November 19, 1942, the respondents in that proceeding filed an answer which they made a cross-bill. No answer was made to the cross-bill. On February 14, 1944, the trial court rendered a decree dismissing, for want of prosecution, the 1939 original bill, as amended. In this connection, the bill now before us alleges that the trial court, 'on motion made by the solicitor for the cross-respondents at the trial court, without giving these cross-complainants their day in court, dismissed their complaint with prejudice'. It is then alleged that 'a bill for review was filed in the Circuit Court of Conecuh County, In Equity, seeking relief from the decree dismissing these cross-complainants' original bill' and that 'in the year 1951, the Supreme Court of the State of Alabama, affirming an order of the Circuit Court of Conecuh County, denied these cross-complainants relief'. The decision of this court, there referred to, was rendered on March 29, 1951, in the case of Averett v. Averett, 255 Ala. 606, 52 So.2d 371.
The complainants (appellees), as cross-respondents, demurred to the cross-bill filed on December 21, 1951. It is from the decree sustaining said demurrer that this appeal is taken. The question raised by the demurrer, and here argued, is whether 'the matters and issues sought to be raised by the allegations of said cross-bill have heretofore been adjudicated * * * and are res judicata'.
Simply stated, the situation is this: A, B and C file a bill for the purpose of having title to 316 acres of land vested in them. D, the respondent, demurs to the bill. The demurrer is overruled. D then files an answer and cross-bill. The trial court, on D's motion, dismisses the original bill for want of prosecution. The decree does not recite whether the dismissal is 'on the merits' or 'with' or 'without' prejudice. A, B and C then file a bill seeking to vacate the decree of dismissal. D's demurrer going to the equity of the bill is sustained. On appeal to the Supreme Court, the decree sustaining the demurrer is affirmed, thereby in effect, denying the relief sought. Query: Did the dismissal of the first bill of complaint, for want of prosecution, and denial by the circuit court and this court of the right to have said dismissal set aside, have the effect of definitely and finally settling and determining the matters and issues there presented? In other words, are appellants now barred from again setting up their claim to title, which claim is based on the same status as that embraced in the first bill? Our view is that both of these...
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Wal-Mart Stores, Inc. v. Caples
...dismissal operated as an adjudication on the merits, and it bars this action under the principle of res judicata. Averett v. Powell, 260 Ala. 158, 69 So.2d 278 (1953). Thus, it was error for the circuit court to deny Wal-Mart's motion to dismiss this REVERSED AND REMANDED. SHORES, HOUSTON, ......