Curjel v. Ash, 1 Div. 631

Citation263 Ala. 585,83 So.2d 293
Decision Date10 November 1955
Docket Number1 Div. 631
PartiesCarol L. CURJEL et al. v. Anne Louise ASH.
CourtSupreme Court of Alabama

Vickers & Thornton, Mobile, for appellants.

C. B. Arendall, Jr., Thos. G. Greaves, Jr., and Smith, Hand, Arendall & Bedsole, Mobile, for appellee.

LAWSON, Justice.

Miriam P. Jacobson died on July 15, 1951, leaving a last will and testament which was duly probated and admitted to record in the probate court of Mobile County on August 1, 1951, and on that date letters testamentary were issued to Carol Curjel, named in the will as executrix.

The second item of the will providing for a devise to Anne Louise Ash reads:

'I do hereby will, devise and bequeath to my great-niece, Anne Louise Ash, that certain real property known as 221 Dauphin Street in the City of Mobile, Alabama, and in the event that said property may be sold at the time of my death, I do will, devise and bequeath to the said Anne Louise Ash, in cash, the amount of the price for which said property was sold.' (Emphasis supplied.)

In the fifth item of her will the testatrix provided:

'All the residue of my estate, I do hereby will, devise and bequeath to my sister, Augusta Eichold, and my niece, Carol Curjel, share and share alike.'

On November 5, 1951, Carol Curjel and her husband, Hans Curjel, executed and delivered to Mrs. Hermoine C. Friend and Mrs. Barbara C. Steiner a quitclaim deed to property described in the conveyance as the premises 'known as 221-A Dauphin Street,' which conveyance was duly recorded in the probate court of Mobile County. On January 11, 1952, Anne Louise Ash, acting by and through her father and next friend, filed her bill in the circuit court of Mobile County, in equity, against Carol Curjel and her husband, Hans Curjel; Mrs. Hermoine C. Friend and her husband, E. M. Friend, Jr.; Mrs. Barbara C. Steiner and her husband, Berghard Steiner. Augusta Eichold was also made a party respondent. Briefly stated, the purpose of the bill was to secure an adjudication holding in effect that the property described in the deed from Mrs. Curjel and husband to Mrs. Friend and Mrs. Steiner was a part of the property devised to Anne Louise Ash by Mrs. Jacobson. Demurrer filed by all of the respondents except Augusta Eichold was sustained on March 10, 1952.

Thereafter on March 18, 1952, her disabilities of non-age having been relieved, Anne Louise Ash filed her amended bill against the same persons made respondents to the original bill. The ultimate objective of the amended bill was the same as that of the original bill. The respondents other than Augusta Eichold filed their demurrer to the amended bill. Grounds of the demurrer were addressed to the bill as a whole and grounds of demurrer were addressed to the several aspects which the demurrants construed the amended bill to encompass, namely, (1) construction of the will of Miriam P. Jacobson, (2) removel of cloud on title, (3) quieting title and (4) declaratory relief. The trial court on May 19, 1952, rendered a general decree overruling the demurrer to the bill as amended. The effect of such a ruling was a ruling only on the demurrer to the bill as a whole. Rowe v. Rowe, 256 Ala. 491, 55 So.2d 749; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100; Shaddix v. Wilson, 261 Ala. 191, 73 So.2d 751.

From the decree of May 19, 1952, the respondents who had demurred to the bill as amended appealed to this court. We treated the bill as amended as having only one aspect, namely, a bill seeking a declaratory judgment. So construed, we held that the demurrer should have been sustained for the reason that the averments of the amended bill were not sufficient to show a justiciable controversy. We will not undertake to set out the averments and prayer of the amended bill which we considered on that appeal, for they are fully set out in our opinion then delivered. See Curjel v. Ash, 261 Ala. 42, 72 So.2d 732.

After remandment Anne Louise Ash again amended her bill. The respondents who had previously demurred filed demurrer to the bill as thus amended, with grounds addressed to the bill as a whole and with grounds addressed (1) 'to that aspect or phase * * * wherein it is sought to construe the will of Miriam P. Jacobson * * *'; (2) 'to that aspect or phase * * * wherein it is sought to quiet title * * *'; and (3) 'to that aspect or phase * * * wherein it is sought to obtain a declaratory judgment * * *.' A decree was rendered wherein the demurrer was sustained generally. Again the complainant amended her bill and the demurrants refiled the demurrer last filed, with some additional grounds. The trial court thereupon rendered a decree overruling the demurrer addressed to the bill as a whole and the demurrers addressed to the three aspects which the demurrants construed the bill as last amended to encompass. From that decree the demurrants have prosecuted this appeal.

Motion to Dismiss Appeal

Appellee moves to dismiss the appeal on the ground that it is prosecuted in contravention of § 756, Title 7, Code 1940, which reads:

'Whenever the equity of a bill, complaint or petition has been tested and upheld by the supreme court on an appeal from any interlocutory order, judgment, or decree, no other appeal can be taken from any subsequent interlocutory order, judgment or decree; but the rulings of the trial court on any such interlocutory orders, judgments or decrees may be reviewed by the supreme court on appeal from the final judgment or decree.'

We have said that when on an appeal to this court a bill is held good as to substantial relief sought, although in the same opinion some features of the bill are held subject to demurrer, the equity of the bill is upheld within the meaning of the provisions quoted above and there cannot be an appeal from a subsequent interlocutory decree. Thomasson v. Benson Hardware Co., 224 Ala. 11, 138 So. 287; Sicard v. Ingalls, 250 Ala. 585, 35 So.2d 342.

But on the first appeal of this case no substantial equity of the amended bill there under review was sustained. As indicated above, we treated that bill as seeking only declaratory relief and the effect of our holding was that the bill did not state a case for such relief, inasmuch as it failed to show a justiciable controversy between the parties.

The motion to dismiss the appeal is denied.

On the Merits

Counsel for appellants in brief filed heresay: 'The question for decision here is actually whether the amendments to the bill of complaint met the objections which this court pointed out in the opinion on the previous appeal.' But our review here is not so restricted. We are required by statute to review the case anew without regard to the former decision. § 28, Title 13, Code 1940; Birmingham News Co. v. Birmingham Printing Co., 213 Ala. 256, 104 So. 506; Wilkey v. State ex rel. Smith, 244 Ala. 568, 14 So.2d 536, 151 A.L.R. 765; Lucas v. Lucas, 258 Ala. 515, 64 So.2d 70.

The amendments made after remandment have not changed the character of the proceeding and we think the amended bill here under review, to which we will refer hereafteer as the bill, is one seeking relief under the declaratory judgment law, Code 1940, Title 7, §§ 156-168, as amended. So we will treat the bill as having only that aspect.

Wills are among the instruments which will be construed in an action for declaratory relief where the terms of the will are in dispute. §§ 156, 157, 159 Title 7, Code 1940; Montgomery v. Montgomery, 236 Ala. 161, 181 So. 92. In Fillmore v. Yarbrough, 246 Ala. 375, 20 So.2d 792, 793, we said: 'But under the declaratory judgments act, supra, the court takes jurisdiction of an actual controversy as to a justiciable question, and settles it though in doing so, it must construe a will when there is no other equity to confer jurisdiction on the court.'

Ordinarily where a bill for declaratory relief shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. The test of the sufficiency of such a bill is not whether the complaint shows that the complainant will succeed in getting declaration of rights in accordance with his theory or contention, but whether he is entitled to a declaration of rights at all. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11; McCall v. Nettles, 251 Ala. 349, 37 So.2d 635; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So.2d 658; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100; Waterworks and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So.2d 704.

But where no actual controversy as to a justiciable question is alleged, a demurrer to a bill seeking declaratory relief should be sustained. Alabama State Milk Control Board v. Graham, supra; Gilmer v. Gilmer, 245 Ala. 450, 17 So.2d 529; Shadix v. City of Birmingham, 251 Ala. 610, 38 So.2d 851.

The only grounds of demurrer which are sufficiently argued here to warrant treatment are those which take the point that the averments of the bill are not sufficient to show an actual controversy as to a justiciable question. If we do not think those grounds of demurrer were well taken, then we must affirm the decree of the trial court, for on an appeal from a decree overruling a demurrer to a bill in equity grounds of demurrer not argued are treated as waived. Reeves v. Little, 262 Ala. 411, 79 So.2d 55.

The bill discloses that the testatrix, Miriam P. Jacobson, when she executed her will on December 19, 1944, and at the time of her death on July 15, 1951, was the owner of certain real property which fronted on the south side of Dauphin Street in the City of Mobile, Alabama, which for present purposes may be described as a three-story building and the lot on which it stands. We will hereafter sometimes refer to that property as the building...

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    ...Co. v. City of Montgomery, supra. These general principles are particularly applicable to bills seeking declaratory relief. Curjel v. Ash, 263 Ala. 585, 83 So.2d 293; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11; Gilmer v. Gilmer, 245 Ala. 450, 17 So.2d 529; Shadix v......
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