Crausby v. Crausby

• Decision Date: 21 December 1909
• Parties: CRAUSBY ET AL. v. CRAUSBY ET AL.
• Court: Alabama Supreme Court

51 So. 529

164 Ala. 471

CRAUSBY ET AL. v. CRAUSBY ET AL.

Supreme Court of Alabama

December 21, 1909

Appeal from Chancery Court, Covington County; L. D. Gardner Chancellor.

Suit by Thomas Crausby and others against William Crausby and others. From a decree adjudging that the pleas were sufficient complainants appeal. Reversed and remanded.

Dowdell C.J., dissenting.

C. E Reid, for appellants.

Parks & Rankin and Foster, Samford & Prestwood, for appellees.

MAYFIELD J.

The complainants filed this their bill against respondents to redeem certain lands therein described from an execution sale, at which sale one of the respondents purchased and thereafter conveyed the timber and timber rights in and to the lands to the other respondents, and then seek a sale of the lands for partition among the parties to the suit, and also seek to charge the respondents as for waste, rents, incomes, and profits as to the common property. To that part of the bill which seeks a sale of the lands for partition and distribution among the joint owners, the defendants filed separate pleas in bar, setting up the fact that prior to the filing of this bill some of the complainants to this bill filed a bill in the chancery court of Covington county, against the respondents and other of the complainants, seeking to sell these identical lands for partition among the joint owners or tenants in common, and that that bill was dismissed for want of prosecution, and the complainants were taxed with the costs, and that, under and in accordance with rule 28 of the chancery practice of this state, the decree of dismissal was a bar to this suit, in so far as it seeks a sale of the same lands for partition between the same parties. The cause was set down for hearing on the sufficiency of these special pleas. The chancellor decreed that the pleas, or one thereof, was sufficient. From that decree this appeal is prosecuted. The only question for review is the sufficiency of this plea.

This question depends upon the fact as to whether or not the decree dismissing the first suit for want of prosecution, in connection with rule 28 of the chancery practice, is a bar to this suit is so far as it seeks to sell these lands for partition among the joint owners. But for the chancery rule there would be no question that the first decree would not be res judicata as to the second suit. The rule is as follows: "Dismissal, When Equivalent to Dismissal on Merits.--If the complainant, after the cause is set down to be heard, cause the bill to be dismissed on his application, or if the cause is called on to be heard in the court, and complainant makes default, and by reason thereof the bill is dismissed, then and in such case dismissal, unless the court otherwise orders, is equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter." The evident purpose and effect of the rule was to give the same effect to decrees dismissing suits under the conditions specified in the rule as is given to decrees dismissing bills on their merits. This the rule clearly and expressly states. If the former suit had been dismissed on its merits, and that dismissal would be a bar to this suit, then the dismissal, as alleged in the pleas, is a bar also by virtue of the rule.

We do not think that the dismissal of the former suit in either event would be a bar to this suit, even to the extent of selling the lands for partition or distribution; and it was only to this extent that the pleas were interposed as a defense. While the subject-matter is the same, and some of the parties are the same, the parties are not identical. The questions to be litigated in the two cases are by no means necessarily the same. The complainants may be entitled to sale under this bill for partition, though it be conceded they were not entitled to partition before. The other suit did not and would not necessarily determine that complainants had no title, nor that respondents had title, but all that it necessarily determined was that a sale would, or could, not be had under the statute (section 5231, Code 1907). The statute only authorizes the sale when the lands cannot be equitably partitioned among the joint owners or tenants in common. While title to the lands may be inquired into, if the sale is in the chancery court, it does not necessarily follow that it must be so inquired into, further than to determine the extent of interest or aliquot part of each tenant in common, so that a distribution or division may be had of the proceeds in case of a sale. In the case of Davis v. Bingham, 111 Ala. 296, 18 So. 660, it was held that the jurisdiction of chancery and probate courts to sell lands for equitable division was both statutory and concurrent, and that a proceeding to sell lands under either statute could not be made to serve as a substitute for an action of ejectment to determine title to land; that such was not the object or purpose of the statutes.

It is true that the jurisdiction and powers of the chancery court have been extended, and the statute amended in this respect since the decision of the case of Davis v. Bingham, supra, and questions of title or adverse possession may now be determined if the proceeding to sell be in the chancery court;...