Carson v. Sleigh

• Decision Date: 02 July 1917
• Docket Number: 7 Div. 879
• Citation: 201 Ala. 373,78 So. 229
• Parties: CARSON et al. v. SLEIGH.
• Court: Alabama Supreme Court

78 So. 229

201 Ala. 373

CARSON et al. v. SLEIGH.

7 Div. 879

Supreme Court of Alabama

July 2, 1917

On Rehearing, March 23, 1918

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Suit in equity by J.W. Sleigh against W.F. Carson and others, wherein cross-bill against complainant, J.C. and T.L. Carson was filed. From the decree, respondents and cross-complainants appeal. Affirmed.

T.C Sensabaugh, of Anniston, for appellants.

Ross Blackmon and W.W. Whiteside, both of Anniston, for appellee.

SAYRE J.

This is a bill in equity for the sale of land for division among cotenants. It appeared in the progress of the cause that complainant (appellee) had derived his interest in the land in question by purchase at a sale under execution which had been levied on the interests of J.C. and T.L. Carson heritors, each, of an undivided one-eighth interest from their mother, Mrs. M.E. Carson, deceased. Other six children and heirs at law of Mrs. Carson were made parties defendant. The cause was at issue on the original bill, and depositions were taken in December, 1916. On January 13, 1917, defendants filed a cross-bill, to which original complainant, together with J.C. and T.L. Carson, were made parties defendant. On February 2d original complainant moved to strike the cross-bill, demurred thereto, and, without waiving his motion or demurrer, for answer denied "all the averments of facts therein." The circuit judge, sitting as chancellor, brought the cause on for hearing on February 17th, and on that day the parties to the original cause joined in a submission, the pleadings and the evidence on either hand being afterwards noted by the register. However at that time J.C. and T.L. Carson, defendants in the cross-bill, had not been brought in, and cross-complainants, by formal motion lodged with the register and reproduced in the transcript of the record, objected to the submission on the ground that the cross-cause was not at issue and requested the court to grant them a reasonable time in which to take testimony on the issues sought to be raised by the cross-bill. The transcript shows an answer to the cross-bill filed by J.C. and T.L. Carson on February 20, 1917, and their answer is noted as of that date in the defendant's note of submission, which, as we have indicated, was dated as of the 17th of February. This discrepancy as to dates is explained by an affidavit and motion to strike original complainant's note of testimony, said affidavit and motion being made by counsel for cross-complainants (original defendants) and noted in the note of submission filed by them. In this way it appears that, when the cause was called for trial on February 17th, the court stated that the cause would be taken on submission as of that date; that the testimony might be noted afterwards; and the notes of testimony, though appearing in the transcript as of February 17th, were in fact prepared and signed by the register on the 23d of February. Appellants contend that the court erred in bringing on the hearing of the cause in the circumstances and in the manner thus appearing.

The first insistence for appellants is that, apart from the alleged unpreparedness of the cause for trial, the court committed error for that it brought on the cause for a final hearing at a time not fixed by law, without notice to cross-complainants (defendants) and against their objection. The jurisdiction and powers of the chancery court have been conferred on the circuit court, which tries and determines every cause or proceeding in equity according to the rules and principles formerly administered in the chancery court. Acts 1915, p. 279. The circuit courts are required to be open for the transaction of judicial business in the several counties of the state from the first Monday in January to and including the last Saturday in June of every year, and from the first Monday after the Fourth of July to and including the last Saturday before Christmas of every year, and "causes on the dockets for trial shall be called peremptorily at the times fixed by law and at such other times as may be fixed by order of circuit judge," etc. Acts 1915, pp. 707, 708, § 2. The only limitation upon the power of the judge to appoint a time for the holding of his court other than the times fixed by law, if any, is that it must be held within the times designated by the statute supra. Ex parte Branch, 63 Ala. 383. ...