Crawford v. Espalla, 1 Div. 687

• Decision Date: 06 November 1958
• Docket Number: 1 Div. 687
• Citation: 106 So.2d 250,268 Ala. 351
• Court: Alabama Supreme Court
• Parties: Henry CRAWFORD et al. v. Joseph G. ESPALLA et al.

Page 250

106 So.2d 250

268 Ala. 351

Henry CRAWFORD et al. v. Joseph G. ESPALLA et al.

1 Div. 687.

Supreme Court of Alabama.

Nov. 6, 1958.

Vincent F. Kilborn and Michael J. Salmon, Mobile, for appellants.

Caffey, Gallalee & Caffey, Mobile, for appellees.

COLEMAN, Justice.

The question on this appeal is whether or not the Circuit Court, in Equity, committed error in sustaining demurrer to a bill of complaint having two aspects, one as a bill of review and another as an original bill in the nature of a bill of review. The demurrer is addressed to the bill as a whole. Our cases are clear to the effect that if in any aspect the bill sufficiently states a cause of action, the demurrer addressed to the bill as a whole should be overruled. Talbot v. Braswell, 266 Ala. 578, 98 So.2d 7; Ala.Digest, Equity, kNo. 232. If, however, the bill, in both aspects, fails to state a good cause for equitable relief as against the grounds interposed, the demurrer was correctly sustained and the decree appealed from was not in error.

The complainants below, appellants here, seek to avoid a decree rendered by the Circuit Court of Mobile County, in Equity, on April 18, 1956, wherein that court decreed that appellee, Espalla, respondent and cross-complainant in that prior suit, was the owner of a certain note secured by mortgage on real estate in Mobile County owned by complainants, that the amount of the mortgage debt was $2,590.72, that complainants had defaulted in payment of the debt, and ordered said real estate sold on June 25, 1956, in foreclosure of said mortgage.

According to the averments of the bill of complaint now before us, the foreclosure decree under attack came to be entered in the following manner:

In December, 1954, the complainants, apparently husband and wife, engaged one Rast, also named as a respondent but apparently never brought into court in the instant suit, to make certain repairs and improvements on the suit property. The instant bill avers that the agreed price to be paid Rast was $1,196; that on December 27, 1954, Rast presented to complainants a document which Rast represented to be the agreed contract but which was in fact a proposal to do the work for $1,448 and that complainants rejected this proposal; that on January 10, 1955, Rast presented another document to complainants and represented to them that this second document contained the original agreement and that complainants executed this second document in reliance on said representations made to them by Rast; that in fact said second document was a mortgage on their above mentioned real estate securing a note for $2,048, and that complainants were caused to execute said mortgage by reason of fraud, deceit, trickery, and misrepresentations of Rast in representing that the document they executed was a simple agreement to make the repairs for the agreed price of $1,448; that upon discovery of the fraud thus practiced upon them by Rast, complainants employed an attorney of Mobile, Alabama, and through him on April 27, 1955, filed a bill of complaint in the Circuit Court of Mobile County, in Equity, praying for cancellation of said mortgage and for general relief; that Rast, the sole respondent to said bill, on May 30, 1955, filed a motion to strike himself as a party thereto on the ground that the mortgage had been transferred to Espalla, appellee on this appeal, prior to filing said bill of complaint on April 27, 1955, and that Rast disclaimed any interest in the suit property; that complainants' attorney on July 1, 1955, filed a motion to dismiss Rast's motion to strike himself; that while said motions were pending, Espalla, on June 2, 1955, filed an unverified motion to intervene in said suit and also filed a cross-bill; that the motion to intervene was granted June 13, 1955, and Espalla filed answer and cross-bill on July 6, 1955; that complainants were never served with process as to such intervention until June 7, 1956, but complainants' attorney filed an answer to Espalla's crossbill on July 14, 1955; that '* * * at some time intervening the filing of the motion by Respondent Rast to strike himself * * *' (which was May 30, 1955), and the hearing of said motion on December 5, 1955, complainants' attorney became ill and died on December 2, 1955, three days before Rast's motion to strike himself was granted; that during his illness and prior to his death, complainants' attorney was not able to attend to his affairs, and, '* * * having been made aware of the illness of their counsel * * *,' complainants inquired of him and were informed that a second attorney, also of Mobile, having the same surname as but no kin to complainants' first attorney, was handling the affairs of the attorney who was ill, and, 'Having been so advised, your Complainants took no attorney filed an answer to Espalla's cross-bill representation and were under the impression that their interests were being protected * * *.' by the second attorney; that on November 30, 1955, unknown to complainants, the Deputy Register 'addressed' to the second attorney a letter advising that the case had 'been passed continuously since June 6, 1955 * * *,' and that 'The Court will make some ruling on the above motions on December 5th and wishes to hear from you as to whether or not you are in the above case;' that complainants were never informed of the letter or the court's proposal to act; that shortly after the death of their first attorney, one of complainants visited the second attorney who advised her he would look into the matter, and that she further visited him 'on two other occasions and lastly on April 19, 1956, about this case;' at no time were complainants aware that they were not being represented by the second attorney or that the court had communicated with him or that the case was set for trial or had been tried until complainants received a letter from the second attorney on May 29, 1956, advising them '* * * there has already been a judgment taken in the case,' and the property was to be sold June 25, 1956, according to notice by the court, and that 'It looks like there is nothing to do but make arrangement for someone to buy the property in for you at the sale;' that on receipt of the letter of May 29, 1956, complainants immediately consulted the second attorney and were told he was not interested in handling the case; that complainants have now discovered that the case was set and heard by the court on April 18, 1956, when the decree of foreclosure now complained of was entered; that complainants have exercised due diligence, had no notice that the case was to be heard, and that the court was without jurisdiction to render the foreclosure decree because, (a) prior to filing his bill to intervene Espalla had transferred the mortgage to Adele M. Clinton, and (b) when the court granted the motion of Rast 'to strike the bill of complaint in this cause, there remained nothing before the Court whatsoever, and in effect the Court worked a complete change of parties without warrant of law * * *:' that complainants have a meritorious defense, and that they are 'ignorant negroes unlettered in the law and are not cognizant of Court procedures, process and the like.'

The instant bill containing the aforesaid averments was filed June 22, 1956, by counsel who represents complainants on this appeal.

The appellee, Espalla, demurred and assigned grounds taking the points, among others, that the averments of the bill do not acquit complainants of negligence in their defense of the suit wherein relief is sought, and that it affirmatively appears that complainants were negligent in not ascertaining that the second attorney was representing them or if he was, then he was negligent. The demurrer was sustained and complainants bring this appeal. We will consider the sufficiency of the two aspects of the bill of complaint.

As a bill of review.

'With respect to the nature of the error apparent upon the face of the decree, which will support a bill of review, this court has clearly expressed the rule as follows:

"The errors which will support a bill of review are errors of law apparent on the face of the decree. There must be error in substance, of prejudice to the party complaining, apparent on the face of the pleadings, proceedings or decree. (Citation omitted.) Or, as it is expressed in 2 Dan.Ch.Pr. 1576, 'the decree complained of, must be contrary to some statutory enactment, or some principle or rule of law or equity, recognized and acknowledged, or settled by decision, or be at variance with the forms and practice of the court.' (Citations omitted.) Though it is said, error apparent exists, when the decree is at variance with the forms and practice of the court, it must not be understood that the bill can be maintained because of matter of form, or that the propriety of the decree can be questioned. (Citations omitted.) Comparing the decree with the pleadings and other proceedings, it must be aparent that the court has reached and declared an erroneous conclusion of law, as to the rights of the parties. Whatever of error other than this, which may have intervened--errors in the regularity of the proceedings, erroneous deductions from the evidence--must be corrected by writ of error, or by appeal; it is not the office of a bill of review to inquire into and correct them. (Citations omitted.)' (Par. added.) Jones v. Henderson, 228 Ala. 273, 276, 277, 153 So. 214, 217.

See also Nesbitt v. Hagan, 265 Ala. 213, 216, 217, 90 So.2d 217, 219, where it is said:

'* * * a bill of review is not a substitute for an appeal, and to support it there must be error of substance of prejudice to the complaining party on the face of the pleadings, proceedings, or decree. Comparing the decree with the pleading and other proceedings, it must be apparent that the court reached and declared an erroneous conclusion of law as to the rights of the parties. Other errors such as irregularities in...