Cobbs v. Norville, 1 Div. 758.

• Decision Date: 21 December 1933
• Docket Number: 1 Div. 758.
• Parties: COBBS v. NORVILLE et al.
• Court: Alabama Supreme Court

151 So. 576

227 Ala. 621

COBBS v. NORVILLE et al.

1 Div. 758.

Supreme Court of Alabama

December 21, 1933

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Bill in equity by Daniel B. Cobbs against Peyton Norville and others and cross-bill by named respondent. From the decree complainant and James S. Patterson, as administrator of the estate of respondent Rolf Seeberg, deceased, appeal.

Affirmed.

D. B. Cobbs, of Mobile, for appellants.

Robt. H. Smith, of Mobile, for appellee.

THOMAS Justice.

The reports of the several phases or litigable questions as to the parties and the lands in question are Seeberg v. Norville et al., 202 Ala. 417, 80 So. 621; Id., 204 Ala. 20, 85 So. 505; and Norville et al. v. Seeberg, 205 Ala. 96, 87 So. 164. The attack now made is upon the last decree and the effect thereof.

It is established in this jurisdiction that appellate courts will indulge every intendment to sustain judgments and decrees of circuit courts-a court of superior and general jurisdiction-in the exercise of their general powers, and that only direct impeachment is permissible unless the want of jurisdiction affirmatively appears on the face of the record. Hurt et al. v. Knox, 220 Ala. 448, 126 So. 110; 15 R. C. L. page 841.

It may be further observed that collateral attacks on judgments of such courts can only be impeached for jurisdictional defects disclosed on the face of the record (34 C.J. page 525): a party or his privies will not be permitted to so assail collaterally, unless the judgment is "void for the want of jurisdiction in the court" of its rendition. 34 C.J. page 555, § 856; 15 R. C. L. page 840, § 314. When jurisdiction has attached, the court has the right to decide every question duly presented and arising on the case-the hearing being at a time and place prescribed by law. All errors of judgment or irregularities which do not render the judgment void are not available on collateral attack. Hurt et al. v. Knox, supra; Driggers v. Cassady, 71 Ala. 529, 532; Doe ex dem. Saltonstall & Wife v. Riley & Dawson, 28 Ala. 164, 65 Am. Dec. 334; Cox v. Davis, 17 Ala. 714, 716, 52 Am. Dec. 199; Powell v. Union Bank & Trust Co., 173 Ala. 332, 56 So. 123; Louisville & Nashville Railroad Co. v. Grant, 153 Ala. 112, 45 So. 226; Kidd v. Burke, 142 Ala. 625, 38 So. 241; Shamblin v. Hall, 123 Ala. 541, 26 So. 285; Patton v. State, 160 Ala. 111, 49 So. 809; Skinner v. State, 142 Ala. 46, 38 So. 242; Pickens et al. v. Clark, 203 Ala. 544, 84 So. 738; Ex parte State ex rel. Smith, Atty. Gen. (State v. Thurman), 205 Ala. 677, 88 So. 899; Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839.

A judgment rendered by a court of competent jurisdiction on the merits and issues pleaded by the parties, or those which ought to have been litigated (where the issues are broad enough to comprehend all that was involved in the issues of the second suit), concludes and is res judicata on the latter suit by such parties or privies as to such subject-matter. The test is, "not what the parties actually litigated, but what they might or ought to have litigated" in the former suit. Crowson v. Cody, 215 Ala. 150, 153, 110 So. 46, 49; Stewart v. Burgin, 219 Ala. 131, 121 So. 420; Bell v. Jones, Judge, 223 Ala. 497, 136 So. 826. This rule was recently stated and applied by Mr. Justice Foster in Adams v. Powell et al., 225 Ala. 300, 142 So. 537, and authorities collected. See, also, Terrell v. Nelson, 199 Ala. 436, 74 So. 929; Phillips v. Sipsey Coal Mining Co. et al., 218 Ala. 296, 306, 118 So. 513.

It has been observed that the subjects of collateral attack and res judicata bear a fundamental relationship, and involve a consideration of a judgment in subsequent legal proceedings. 15 R. C. L. page 840, § 313.

It will be necessary that we consider this suit as a collateral attack on the decree rendered in cause No. 1155 ( Norville et al. v. Seeberg, 205 Ala. 96, 87 So. 164), and whether the validity of Norville's liens in respect to payment of the purchase money and purchase of title at the sheriff's sale is fixed by that decree.

We shall, therefore, consider the litigable issues in the former case (No. 1155) and in the pleading No. 4957. It will be noted that the last bill (No. 4957) states the various purposes of the bill in No. 1155, and concludes with the following averment: "And said complainant Seeberg included in his averments his full submission to the Court and his offer to do whatever equity the law might require of him to recover said land freed from the troubles arising from said power of attorney, etc." (Italics supplied.)

The pleader refers to the file and record in No. 1155, saying:

"It was decided by the Supreme Court of the State that the averments of said bill as amended conferred jurisdiction upon the Court, and complainant is advised and so charges that the Court, being of general powers and jurisdiction acquired jurisdiction of all the purposes of said bill as amended, and of the land, the subject matter of said litigation.

"Complainant shows further that each of said defendants named as such in the bill in said cause number 1155, the defendant Peyton Norville, as well as Mrs. Ellen Kelly the other defendant thereto, was personally served with subp na to answer the bill in said cause, and they appeared therein by their solicitors, and demurred, and appealed on rulings on demurrers, concerning pleadings, and at last filed answers to the bill as amended, and this Honorable Court did thereby obtain jurisdiction of them for all of the equitable and legal purposes of said bill as amended, and the doing of complete justice and giving complete relief therein to all parties thereto." (Italics supplied.)

The eighth paragraph of the last bill states the facts contained in the pleadings; as the amended answers of defendants Norville and Kelly, the sale and purchase of this land by the First National Bank of Mobile, and its acquisition by purchase by defendant Norville.

In amending the last bill, paragraphs 12A and 16 were added; paragraph 12A averring, among other things, that:

"The present defendants Rolf Seeberg and Peyton Norville are the same persons by those names who were parties to said former suit No. 1155, and the land concerned in said lis pendens notices of Rolf Seeberg and the sheriff and in said former suit No. 1155 is now concerned in the present suit. The deed set up in the defendant's amended answer in the present suit as made during the pendency of said former litigation to the defendant Peyton Norville from the First National Bank of Mobile, there being but one such deed, is the same deed that was set up in said defendant Peyton Norville's amended answer filed in said former suit, in its section numbered 6 1/2; said deeds were noted in said defendant's note of evidence in said former suit and were on file therein, along with much other documentary evidence, there being no oral testimony therein on the point of said two deeds or either of them; and the Court had said deeds in court before it at the hearing, and referred to one of them in the final decree rendered in said cause. The First National Bank of Mobile was not in fact a party to said former litigation against defendant Norville, was neither a complainant nor a defendant therein. * * * And complainant charges and shows that the bank to whom the sheriff made his said deed while said former litigation was pending, foreclosed and lost any lien it may have had by means of the registration of its judgment against said Rolf Seeberg when it received its said deed from the sheriff, and is without interest or title in said land and has no lien thereon and complainant has never made it a party, but shows it is not even a proper party to this cause nor proper to be brought into it.

"Complainant charges and avers that defendant Peyton Norville and its grantor the First National Bank of Mobile are bound by the final decree rendered in said former suit No. 1155, and can not contest nor attack said final decree, as to the effect of said two deeds, nor contradict said final decree in any manner; but said final decree is conclusive on them and res judicata."

And paragraph 16 avers in part that:

" Notwithstanding the binding effect and force of the aforesaid final decree dated August 19th and filed in this Court on September 19th, 1925, in the aforesaid cause number 1155, said decree was not jurisdictional nor valid to confer nor in conferring upon the defendant Mr. Norville the lien expressed and given him in said decree upon said land, for that the question or issue as to whether said defendant was entitled in law or in equity to said lien was not asserted or set up nor was such a lien ever claimed by any pleading made in said former cause, and was never prayed or asked for in said suit, and such a question or issue was not in fact involved in said cause, nor was it an issue that ought to have been or could have been litigated or concerned in said cause." (Italics supplied.)

A copy of the pleadings and decree in cause No. 1155 is exhibited. Paragraph 8 of the bill in cause No. 1155 states: "Insofar as it may be necessary to do equity in the premises, complainant offers to pay to said Peyton Norville and Mrs. Ellen T. Kelly said sum of six hundred dollars, and all lawful interest thereon; * * * and complainant submits himself fully to the jurisdiction of the Court for all purposes of doing equity, as a condition precedent to the relief hereby prayed, offering to pay whatever the Court may find to be equitable and proper for him to pay, and to whomever it may be coming, both of principal and of interest."

The prayer for relief in No. 1155 is that Norville and Kelly be made parties and be held as trustees of and for complainant;...