Carwile v. Crump

• Decision Date: 03 February 1910
• Citation: 165 Ala. 206,51 So. 744
• Parties: CARWILE ET AL. v. CRUMP ET AL.
• Court: Alabama Supreme Court

51 So. 744

165 Ala. 206

CARWILE ET AL. v. CRUMP ET AL.

Supreme Court of Alabama

February 3, 1910

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Bill by Mary J. Crump and others against John A. Carwile, as administrator of Z. T. Carwile, and his heirs at law, to foreclose mortgage. Judgment for complainants, and respondents appeal. Affirmed.

Demurrer was filed to the bill, setting up that there was a misjoinder of parties, in that no one had any rights in the matter except the administrator, and that the heirs at law were improperly joined. This demurrer was overruled. The contention as to attorney's fees sufficiently appears in the opinion of the court. This seems to be the matter litigated, and the issue was brought up by a plea of tender on the part of the administrator of the amount due on the mortgage.

Pinkney Scott, for appellants.

W. E Martin, for appellees.

ANDERSON J.

The bill sought a foreclosure of the mortgage and an accounting to ascertain the indebtedness, and the personal representative was a proper party respondent. Eslava v New York Co., 121 Ala. 484, 25 So. 1013; Dooley v Villalonga, 61 Ala. 129. And as the heirs of the deceased mortgagor were indispensable parties, there was no misjoinder. McCollum v. Prewitt, 37 Ala. 573; Batre v. Auze, 5 Ala. 173; Erwin v. Ferguson, 5 Ala. 158; Kennedy v Kennedy, 2 Ala. 573; Jennings v. Jenkins, 9 Ala. 286. The general rule is that if a bill is defective for the want of proper parties advantage should be taken of the defect by plea, demurrer or answer, and if not so taken the objection is waived. The rule is subject to the exception that if the cause cannot be properly disposed of on the merits, without the presence of the absent parties, the objection may be made at the hearing, or, on error, it may be taken by the court ex mero motu. Prout v. Hoge, 57 Ala. 32. The omission of an indispensable party in a chancery case is available on error, without previous objection. Powe v. McLeod, 76 Ala. 420, and cases there cited. It may be that a decree would be valid and binding as to all the heirs present, but if at any time, during the progress of the cause, it should appear that indispensable parties are omitted, the proceedings should be suspended until they are brought in, and the cause should be dismissed, if the complainant, after reasonable opportunity to do so, fails to make them parties. To sanction the proceeding with a cause, in the absence of necessary parties known to the court, would encourage a practice violative of the fundamental principles of equity, and which would provoke rather than terminate litigation. In order, however, to put the trial court in error, the record should show that the absence of some of the necessary parties was known or brought to the attention of the trial court before the rendition of judgment or decree on the merits. In the case at bar the suggestion of other heirs was not made until after the rendition of the decree on the merits, and while the trial court could have suspended further proceedings until they were brought in, yet reversible error was not committed by a failure to do so. Moreover, it does not appear that the parties were heirs. The affidavit sets out that they were granddaughters of a brother of the deceased mortgagor and that their mother...