Ex parte Conradi

• Decision Date: 21 June 1923
• Docket Number: 6 Div. 925.
• Citation: 210 Ala. 213,97 So. 569
• Parties: EX PARTE CONRADI.
• Court: Alabama Supreme Court

97 So. 569

210 Ala. 213

EX PARTE CONRADI.

6 Div. 925.

Supreme Court of Alabama

June 21, 1923

Rehearing Denied Oct. 18, 1923.

Original petition by Fred Conradi, as administrator of the estate of Mary Schoenherr, deceased, for writ of mandamus directed to Hon. Wm. M. Walker, as Judge of the Circuit Court of Jefferson County. Writ granted.

James A. Mitchell and Ivey F. Lewis, both of Birmingham, for appellant.

J. S Kennedy and Nesmith & Garrison, all of Birmingham, for appellee.

THOMAS J.

The time limit to the right of amendment, in equity, is the rendition of the final decree. Kirby v. Puckett, 199 Ala. 594, 75 So. 6; Norville v. Seeberg, 205 Ala 96, 87 So. 164.

A cross-bill must be as complete and perfect as an original bill (Farmers' S. Bank v. Kirkland, 200 Ala 146, 75 So. 894; 21 C.J. § 612, p. 507), though it may refer to and adopt parts of the original bill as to "matter of description" to save unnecessary repetition (H. C & W. B. Reynolds Co. v. Reynolds, 190 Ala. 468, 474, 67 So. 293; Nelson v. Dunn, 15 Ala. 501).

A cross-bill is sufficiently a part of the original cause "to be cut off at the will of the plaintiff, if he amends the original bill by striking out the party defendant who filed the cross-bill. The cross-bill is then out of court, and the defendant filing it can neither make motion nor take appeal in the cause." Sims, Chancery Practice, § 650, p. 428; Code 1907, § 3126; Vandeford v. Stovall, 117 Ala. 344, 23 So. 30. There is nothing in section 3118 of the Code, Sims, Chancery Practice, § 553, p. 367, or the General Acts 1915, p. 825, to contrary effect.

It was decided in the cases of Wilkinson v. Roper, 74 Ala. 140, and Abels v. Planters' & Merchants' Insurance Co., 92 Ala. 382, "*** If the averments of the cross-bill relate to, and spring out of the subject embraced in the original bill, when such cross-bill prays affirmative relief, which is equitable in its character, and which requires a cross-bill for its presentation, if the cause, in this condition, is submitted for decree, then, although all relief may be denied on the original bill, it is the duty of the chancellor to grant such relief on the cross-bill as its averments and the proof would justify, if they were presented in an original bill." (Italics supplied.)

In a later case (Anders v. Sandlin, 191 Ala. 158, 165, 67 So. 684, 687), the court said:

"*** It is *** clear that such feature of the cross-bill contains no independent equity. It is the general rule, established by the decisions of this court, that a cross-bill which shows no equitable relief growing out of the subject-matter of the original bill, and which has no independent equity which would sustain the jurisdiction of the court, is carried out by the dismissal of the original bill. Myer v. Calera Land Co., 133 Ala. 554, 31 So. 938; Etowah Mining Co. v. Wills Valley, etc., Co., 121 Ala. 672, 25 So. 720; Continental Life Ins. Co. v. Webb, 54 Ala. 688; Sims' Chancery Prac. § 649. This feature of the cross-bill, therefore, seeking a mere personal judgment, and having no independent equity, is carried out by a dismissal of the original bill."

See, also, Betts v. Ward, 196 Ala. 248, 258, 72 So. 110.

In Haralson v. Whitcomb, 200 Ala. 165, 75 So. 913, this court recently declared:

"*** It cannot be concluded, from either the Abels , Bickley , or Faulk Cases, that a statutory cross-bill always has such individuality as will require its retention by the court after the original bill has been dismissed, or on final hearing the equity asserted by the original bill has been found by the court not to exist. *** A cross-bill, to survive the dismissal of the original bill and to authorize its retention by the court for the purpose of awarding relief sought by the cross-bill, must assert facts leading to and praying for relief of an equitable character."

These cases are not like the instant one, as in each of the foregoing cases there had been submission for decree on the pleadings and proof; here the cross-bill was not filed until the same day the motion to dismiss the original bill was made. The law having application is in effect as follows: The general proposition is true that a complainant in an equity suit may dismiss his suit at any time before the hearing on payment of costs; to this general rule there is a well-recognized exception, as where the defendant has acquired some rights which might be lost or rendered less efficient by the discontinuance or dismissal. There must be some plain legal prejudice to the defendant. Ex parte Jones, 133 Ala. 212, 32 So. 643; Pullman's Palace Car Co. v. Central Trans. Co., 171 U.S. 138, 18 S.Ct. 808, 43 L.Ed. 108; Chicago & Alton R. R. Co. v. Union Rolling Mill Co., 109 U.S. 702, 3 S.Ct. 594, 27 L.Ed. 1081; 21 C.J. 630 et seq.; 16 Cyc. 468; City of Detroit v. Detroit City Ry. Co. (C. C.) 55 F. 569.

Complainant's motion to amend his bill, by striking defendant Herman G. Schoenherr as a party defendant thereto, should have been granted. So far as the time limit is concerned, that limit to the right of amendment had not expired by the rendition of the final decree. Kirby v. Puckett, supra. Complainant's amendment as a matter of right carried the defendant's cross-bill out of court; that is to say, complainant's motion to dismiss his suit should have been granted, under the general rule of law that a complainant has a right to dismiss his suit at any time before final decree, except where defendant has acquired some rights that might be lost or rendered less efficient.

It is averred in the petition by Conradi, as administrator, that Mary Schoenherr filed her original bill on January 14, 1919, against said Davis and Mary Wagensler, seeking to have set aside a certain mortgage exhibited in the original bill averred to have been made by complainant to defendants Davis and Wagensler covering certain properties (lots 15 and 16, block 35, Smithfield) thereafter devised by Mary Schoenherr to petitioner Conradi's wife; that the mortgage covered other properties claimed by defendant Herman G. Schoenherr, though Mary Schoenherr only sought to set aside the mortgage by the original bill so far as it affected the property devised to Jessie Conradi. Testimony of Mary Schoenherr, taken de bene esse, was taken on January 24, 1919, before Herman G. Schoenherr was a party. It is further averred in the petition for mandamus that defendants (Davis and Wagensler) made their answer a cross-bill, and petitioner Conradi and Herman G. Schoenherr as the sole heirs of Herman G. Schoenherr, deceased, were made parties defendant (May 6, 1919); that thereafter Mary Wagensler died, and the cause was revived against the administrator of her estate (September 20, 1919); that the cross-bill was "dismissed by said defendants Davis and George M. Wagensler, as administrator," which it is averred eliminated said Herman G. Schoenherr from the cause on October 27, 1920. It is further averred that after the death of the said Mary Schoenherr, the original complainant, the cause was revived, and "Herman G. Schoenherr [was made] a party defendant" (December 4, 1920), and the court overruled defendant's demurrer to petitioner's bill as amended, based on his objections to being made a party to the suit, November 26, 1921, and respondents amended the answer. Herman G. Schoenherr filed plea and then answered, asserting he was not a necessary party, on April 3, 1922, and praying it be taken as a cross-bill.

Petitioner effected a compromise, it is averred, of the suit against defendants Davis and George M. Wagensler, as administrator, of the said Mary Wagensler, deceased, and agreed with them that, upon the payment to him of a certain sum of money, he would pay all the costs of the suit and dismiss the same. It is further averred that, in fulfillment of this agreement, said Davis and George M. Wagensler, as administrator, etc., paid petitioner the sum of money agreed upon, whereupon petitioner paid all costs of the suit to that date, and filed his motion on February 12, 1923, requesting the court to dismiss the suit; that on that date the defendant Herman G. Schoenherr filed a paper "which he designated a cross-bill, attempting to make petitioner and defendants Davis and George M. Wagensler, as administrator, etc., parties defendant thereto, which was ineffective for this purpose, for the reason that there was no prayer for process and no footnote thereto." It is further averred that petitioner, on, to wit, the 23d day of February, 1923, filed an amendment to his bill of complaint, striking out said Herman G. Schoenherr as a party defendant, and thereupon said defendant filed his objection to the allowance of petitioner's amendment, and to the granting of petitioner's motion to dismiss the original bill as amended.

Other matters are averred in the petition tending to show that Herman G. Schoenherr would not be prejudiced by the proceedings sought to dismiss the bill. The testimony of Mary Schoenherr, deceased, is averred to have been taken de bene esse before defendant Herman G. Schoenherr was in any way connected with the suit, and that the testimony of the witnesses Jessie Conradi and John W. Altman had been taken for complainant; for Herman G. Schoenherr, his own testimony for defendants Davis and George W. Wagensler, as administrator, etc., the testimony of Miss Etalyne Hardwick. It is averred that each witness whose testimony had been taken was within the jurisdiction of the court and easily accessible, except Mary Schoenherr, deceased, whose testimony had been "taken by complainant de bene esse" and before the said Herman G. Schoenherr was made a party defendant. It is further averred that "no testimony had been published in the cause or offered in evidence"; that the...