Cogburn v. Callier

• Decision Date: 16 April 1925
• Docket Number: 4 Div. 146
• Citation: 213 Ala. 38,104 So. 328
• Parties: COGBURN et al. v. CALLIER et al.
• Court: Alabama Supreme Court

104 So. 328

213 Ala. 38

COGBURN et al. v. CALLIER et al.

4 Div. 146

Supreme Court of Alabama

April 16, 1925

Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.

Bill in equity by Henry Cogburn and others against Bessie N. Callier and others. From a decree sustaining demurrer to the bill complainants appeal. Affirmed.

See also, 104 So. 330.

P.B Traweek and J.N. Ham, both of Elba, and Fleming & Yarbrough, of Enterprise, for appellants.

W.W. Sanders, of Elba, and James J. Mayfield, of Montgomery, for appellees.

SOMERVILLE J.

The bill of complaint shows that Lou A. Cogburn, widow of John A. Cogburn, duly dissented from his will. The effect of this dissent was the same as intestacy, so far as she was concerned (section 10593, Code 1923), and, there being no children, she was entitled to take all the personal property of the decedent (section 17, Code 1923). It appears, therefore, on the face of the bill, that the respondents, as heirs at law of the widow, and not these complainants, are the owners of the personal property that belonged to the estate of the decedent, John A. Cogburn, regardless of any exemption claim or proceeding. As to such personalty, the bill is clearly without equity.

The former bill of complaint, filed by these complainants against these respondents on April 20, 1923, and referred to in the instant bill, was, in its inception, a bill merely to quiet title. Under such a bill any attempted impeachment of the probate decree allotting the homestead exemption to the widow, on the ground that it was fraudulently procured, or infected with fraud in any way, would have been a mere collateral attack, and therefore unavailable. Interstate B. & L. Ass'n v. Stocks, 124 Ala. 109, 27 So. 506; Friedman v. Shamblin, 117 Ala. 454, 23 So. 821; Singo v. McGhee, 160 Ala. 245, 250, 49 So. 290.

But when, upon the filing of the respondents' answer and cross-bill, setting up the exemption decree in question as their muniments of title, the complainants amended their original bill by charging that W.W. Sanders, Esq., fraudulently procured that decree by deception and undue influence practiced upon the homestead commissioners, and through them upon the probate court, this was the institution of a direct attack upon the probate decree, inviting and properly requiring a determination by the court of the issue of fraud thus propounded. This is too clear for controversy.

The record of that case is before us on appeal, and we take judicial notice of the issues therein presented for determination--that decree of the trial court denying relief to the complainants, and adjudicating the title in favor of these respondents by virtue of the validity of the decree allotting the homestead to their ancestor, and the judgment of this court affirming that decree. N.C. & St. L. Ry. Co. v. Crosby, 194 Ala. 338 (12), 70 So. 7; Terrell v. Nelson, 199 Ala. 436, 74 So. 929.

It therefore conclusively appears from the bill of complaint that the issue of fraud vel non in the exemption proceedings has been tried and determined, upon proper pleadings in another cause between these identical parties, by a court having jurisdiction thereof. The bill was therefore demurrable as for want of equity, and specifically because it shows on its face that the title claimed by complainants has been adjudicated adversely to them, and in favor of these respondents. Such an estoppel, apparent upon the face of the bill, is not defensive matter which must be pleaded, but is an impeachment of the complainants' own cause of action, and necessarily renders the bill demurrable. Williams v. Williams, 202 Ala. 539, 81 So. 41; 34 Corp.Jur. 1058, § 1494 (2).

With respect to the judicial notice by a court of its own records we do not wish to be understood as holding that in all cases courts may notice the record of other proceedings therein, even...