Dorrough v. McKee

• Decision Date: 21 June 1956
• Docket Number: 5 Div. 586
• Citation: 89 So.2d 77,264 Ala. 663
• Parties: Ellen DORROUGH et al. v. Sam B. McKEE et al.
• Court: Alabama Supreme Court

Page 77

89 So.2d 77

264 Ala. 663

Ellen DORROUGH et al. v. Sam B. McKEE et al.

5 Div. 586.

Supreme Court of Alabama.

June 21, 1956.

Rehearing Denied Aug. 2, 1956.

Robert E. Varner, Montgomery, and Walker & Walker, Opelika, for appellants-petitioners.

Henry Neil Segrest and Russell & Russell, Tuskegee, for appellee.

LAWSON, Justice.

On December 17, 1952, Ellen Dorrough and Clara Bell Kimbrough filed their bill in the circuit court of Macon County, in equity, seeking sale of land for division of proceeds among tenants in common. The respondents to the bill, twelve in number, together with the complainants, are alleged to be the heirs at law of Mary Louise McKee, who died intestate on June 19, 1952. One of the respondents, Sam B. McKee, is sued in his individual capacity and as administrator of the estate of Mary Louise McKee. The bill does not allege where the administration of the estate of Mary Louise McKee is pending or on what date letters of administration were granted to Sam B. McKee.

The land sought to be sold for division is approximately 140 acres situate in Macon County, which is specifically described.

The bill avers the interest in the suit property of each alleged tenant in common. According to the averments of the bill, the property cannot be equitably divided without a sale. The bill further alleges: 'The personal property of said estate is sufficient to pay the said decedent's debts if any.'

On March 25, 1953, there was filed the following sworn plea in abatement:

'Comes the Respondents, Sam B. McKee, individually and as Administrator of the Estate of Mary Louise McKee, deceased, James T. McKee, Stephen A. McKee, Lawrence Evans and Claudia M. Heirsman, and Odessa Berry, and for the sole and only purpose and for no other purpose in abatement of said suit in the above named cause and pleads:

'1. That at the time of the filing of the Bill of Complaint in this cause, to sell real estate belonging to Mary Louise McKee at the time of her death, the administration of the Estate of Mary Louise McKee, deceased, was pending in the Probate Court of Macon County, Alabama. That no petition has been filed requesting that the administration of the said Estate be removed to the Circuit Court, In Equity, and that no order has been made by the Circuit Court of Macon County, In Equity, to remove the administration of said Estate to the Circuit Court of Macon County, In Equity.

'2. That Sam B. McKee, the Administrator of the Estate of Mary Louise McKee, has filed a petition in the Probate Court of Macon County, Alabama, upon the written request of James T. McKee, an adult heir of the said estate to sell the real estate for distribution among the heirs of said estate according to the Alabama Code of 1940, Title 61, Sections 245 & 246.'

Thereafter on June 3, 1953, the complainants filed their motion, containing eleven grounds, to strike the plea in abatement.

Before any action was taken on the motion to strike the plea in abatement, the complainants filed the following motion:

'Come Now the complainants, Ellen Dorrough and Clara Bell Kimbrough, and, without waiving their motion on file to strike the plea in abatement but insisting upon the same, move the Court that as provided by Equity Rule 16 the plea in abatement on file in this cause be set down for hearing to test its sufficiency.'

October 8, 1953, was the day set by the trial court for hearing the motion to strike the plea in abatement as well as the day set for the hearing as to the sufficiency of said plea. Thereafter on November 3, 1953, the trial court rendered the following decree:

'This cause coming on to be heard is submitted to the court for decree upon the motion of the complainants to strike the plea in abatement filed by the respondents, which plea in abatement was filed by said respondents on March 25, 1953.

'This cause is further submitted to the court upon the motion of the complainants to test the sufficiency of said plea in abatement filed by the respondents.

'This court heard the arguments of the solicitors of record representing the parties litigant in this cause, and the court has had the benefit of excellent briefs filed by the solicitors of record representing said parties.

'Upon consideration, therefore, the court is of the opinion that the motion of the complainants to strike the plea in abatement filed by the respondents is not well taken and ought to be overruled. It is, therefore, ordered, adjudged and decreed by the court that the motion of the complainants in this cause to strike the plea in abatement filed by the respondents, be and the same is hereby overruled.

'And upon consideration of the motion to test the sufficiency of the plea in abatement filed by the respondents, it is ordered, adjudged and decreed by the court that said plea in abatement filed by the respondents to the original bill of complaint in this cause is sufficient, is a good plea, and the plea in abatement is therefore sustained, and the bill of complaint in this cause is hereby dismissed.'

From that decree the complainants have sought to prosecute an appeal to this court.

Submission here by the appellants was on the merits and on a motion for the alternative writ of mandamus and by the appellees on their motion to dismiss the appeal.

Motion to Dismiss Appeal

No appeal can be taken from a decree or judgment overruling or sustaining the sufficiency of a plea.--ss 745, 755, Title 7, Code 1940; State v. Jabeles, 203 Ala. 670, 85 So. 16; Worthington v. Morris, 212 Ala. 334, 102 So. 620; Bullen v. Bullen, 231 Ala. 192, 164 So. 89; Austin v. Eyster, 242 Ala. 402, 6 So.2d 892; Rowe v. Bonneau-Jeter Hardware Co., 245 Ala. 326, 16 So.2d 689, 158 A.L.R. 1266; Dobbs Truss Co., Inc., v. Sutherland, 256 Ala. 581, 56 So.2d 638; Forbes v. Summers, 259 Ala. 271, 66 So.2d 762.

But the decree of the trial court here sought to be reviewed by appeal concludes: '* * * and the bill of complaint in this cause is hereby dismissed.' The appellants contend that the quoted language makes the decree such a final decree as will support an appeal. We cannot agree. In Ex parte Adams, 216 Ala. 241, 242, 113 So. 235, 236. Chief Justice Anderson, writing for the court, said:

'It seems from the former decisions of this court that, when a cause is dismissed or stricken from the docket without more, it is not such a final judgment as will support an appeal. Ex parte [State ex rel.] Attorney General, 142 Ala. 87, 38 So. 835, 110 Am.St.Rep. 20; Davis v. McColloch, 191 Ala. 520, 67 So. 701. It seems, however, that, where the dismissal is followed up by a judgment in favor of defendant against the plaintiff for the cost, it is such a judgment as will support an appeal, and mandamus is not the proper remedy to revise the action of the trial court. Ex parte Hendree, 49 Ala. 360. * * *'

In Graves v. Barganier, 223 Ala. 167, 134 So. 874, on an appeal from a decree striking the bill of complaint in an equity case, the author of the opinion in the Adams case, supra, writing for the court, said in part as follows: 'Whatever may be the rule in other jurisdictions, our court has long been committed to the rule that an order of the trial court in striking a complaint without more will not support an appeal, but can be reviewed by mandamus. Davis v. McColloch, 191 Ala. 520, 67 So. 701, and cases cited.'

The record in the instant case shows that the bill of complaint was merely dismissed and that such order was not followed up by a decree for costs. Under the rule of our cases the appeal is due to be dismissed. Davis v. McColloch, 191 Ala. 520, 67 So. 701; Graves v. Barganier, supra; Cooper v. Cooper, 216 Ala. 366, 113 So. 239; Townsend v. McCall, 262 Ala. 235, 78 So.2d 310.

It is so ordered.

Motion for Alternative Writ of Mandamus

We come now to a consideration of the written motion for alternative writ of mandamus.

We do not ordinarily entertain a petition or motion for mandamus to review a ruling of the trial court on the sufficiency of a plea in abatement, which is subject to review on appeal from a final decree. But we have done so when adequate relief was not available on appeal from the final decree. Ex parte Morton, 261 Ala. 581, 75 So.2d 500, and cases cited.

In the case at hand the trial court has rendered a decree dismissing the complainant's bill. Yet the decree is not in such form as to support an appeal. Mandamus is the proper method of reviewing the action of the trial court in dismissing the bill in question. Ex parte Adams, supra; Davis v. McColloch, supra. We also think that under the circumstances which prevail that in the mandamus proceeding we should review the action of the trial court upholding the legal sufficiency of the plea in abatement.

As pointed out in several of our cases, a demurrer to a plea in an equity case is not contemplated. Ex parte Morton, supra; International Moving Picture & Film Co. v. Smith, 211 Ala. 3, 99 So. 303; Glasser, Kuder & Ottensosser v. Meyrovitz, 119 Ala. 152, 24 So. 514. But when a plea is set down for argument in an equity case the inquiry is substantially as it would be on a demurrer to the plea. The only question considered is the sufficiency of the plea as a defense. For the purpose of determining that question, the plea is construed most strongly against the pleader and the truth of the facts alleged is admitted for the sole purpose of determining the sufficiency of the plea as a defense. The respondent is not to be relieved of the burden of proving his plea even though it be held legally sufficient. Templeton v. Scruggs, 234 Ala. 146, 174 So. 237; Badham v. Badham, 244 Ala. 622, 14 So.2d 730; Little v. Little, 249 Ala. 144, 30 So.2d 386, 171 A.L.R. 1399. See 30 C.J.S., Equity, § 326, p. 746, and 'Pleas in Equity,' by the late Judge E. M. Creel, Alabama Lawyer, Vol. 13, No. 2, p. 125.

The holding by the trial court 'that said plea in abatement filed by the respondent to the original bill of complaint in this cause is...