Florence Gin Co. v. City of Florence, 8 Div. 421.

• Decision Date: 23 March 1933
• Docket Number: 8 Div. 421.
• Parties: FLORENCE GIN CO. v. CITY OF FLORENCE et al.
• Court: Alabama Supreme Court

147 So. 417

226 Ala. 478

FLORENCE GIN CO. v. CITY OF FLORENCE et al.

8 Div. 421.

Supreme Court of Alabama

March 23, 1933

Rehearing Denied April 20, 1933.

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Bill by the Florence Gin Company against the City of Florence and the Mayor, City Commissioners, and clerk thereof. From a decree sustaining a demurrer to the bill, complainant appeals.

Affirmed.

Bradshaw & Barnett, of Florence, for appellant.

W. H Mitchell, of Florence, for appellees.

The decree sustaining the demurrer generally is to be referred to the demurrers to the bill as a whole. Penton v Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14; Sandlin v. Anders, 210 Ala. 396, 98 So. 299; Oden v. King, 216 Ala. 504, 113 So. 609, 54 A. L. R 1413; Kelly v. Carmichael, 217 Ala. 534, 117 So. 67; Wood v. Estes, 224 Ala. 140, 139 So. 331.

Where a bill, as here, sets up several distinct equities, if complainant is entitled to relief on one or more of same, a demurrer to the bill as a whole should not be sustained. Cases, supra.

The question now for review, therefore, is whether the demurrer to the bill as a whole was properly sustained for want of equity in any aspect. Otherwise stated, does the bill disclose equitable grounds for vacating any one of the several assessments made against the property involved?

The bill does not set out the improvement ordinances, nor the assessment proceedings as they appear of record; nor does it allege any defect going to the jurisdiction of the governing body in any stage of the proceedings apparent on the record thereof. The bill is to be construed as though the records were regular in all respects.

Counsel on this appeal, in view of our decisions, are at variance as to whether this is to be regarded as a direct or a collateral attack on judicial proceedings.

It has been declared by this court that "any attempt to impeach and annul a judgment other than by a direct appeal, or by a direct proceeding in the court that rendered the judgment, before the expiration of the term at which it was rendered, is a collateral attack." Penton v. Brown-Crummer Investment Co., 222 Ala. 155, 161, 131 So. 14, 19, and cases cited.

On the other hand, a direct proceeding in any court of competent jurisdiction to vacate and annul judgments and decrees upon recognized grounds has often been termed a direct, rather than a collateral, attack.

All agree that, when the validity of a judgment or decree arises in any other form of proceeding, a collateral inquiry is presented, and its validity can only be questioned for want of jurisdiction or other illegality apparent on the face of the record. This, in strictly statutory proceedings, may appear from failure to recite jurisdictional facts. In courts of general jurisdiction as to the subject-matter, the record must affirmatively show a want of jurisdiction. These familiar rules need no citation of authority.

Whether any proceeding directly challenging the validity of a judgment, and seeking to have it annulled and vacated, should be called a collateral attack, is a matter of terminology.

Certain it is that from the beginning of our jurisprudence a bill in equity has been a recognized remedy to annul and avoid a judgment or decree, not void on the face of the record, but coming into existence as the result of fraud in its procurement, or of mistake or accident, not contributed to by any fault or want of diligence of the party complaining.

Among bills of this class are those challenging the validity of a judicial proceeding for want of jurisdiction due to lack of service, actual or constructive, as the particular proceeding may demand, although the record recites such service.

The security of person and property, dependent on a steadfast adherence to the fundamental doctrines of due process of law, is the basis of such doctrine.

The dignity and sanctity of solemn judgments and decrees are protected in seeing that they are such in fact, not merely colorable, a cover of fraud, or the means of victimizing the citizen without a hearing.

As applied to local assessments of property by municipalities for public improvements, a bill in equity to vacate the same for want of notice, and consequent due process of law, despite recitals of the records, has been fully considered and sustained by the full court in City of Jasper v. Sanders (Ala. Sup.) 145 So. 827, following and elaborating the holding in Jasper Land Co. v. City of Jasper, 220 Ala. 639, 127 So. 210. We merely direct attention to these cases and authorities cited therein.

But it...