Gill v. More

• Decision Date: 14 June 1917
• Docket Number: 1 Div. 968
• Citation: 76 So. 453,200 Ala. 511
• Parties: GILL v. MORE et al.
• Court: Alabama Supreme Court

76 So. 453

200 Ala. 511

GILL v. MORE et al.

1 Div. 968

Supreme Court of Alabama

June 14, 1917

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Bill by Anna S. More and another against Harry Gill to set aside cancel, and annul the decree in the case of Harry Gill v Abraham G. More et al. in so far as said decree refers to or in any manner affects or relates to and clouds orator's title to certain lands described. From a decree for complainants, respondent appeals. Affirmed.

Gordon & Edington, of Mobile, for appellant.

L.H. & E.W. Faith, of Mobile, for appellees.

THOMAS J.

In the instant case the decree is assailed for the want of jurisdiction. The grounds on which it is challenged are: (1) That the complainant in the other suit, Gill, perpetrated a fraud on the chancery court in falsely alleging that at the time of the filing of his bill in the suit in which the questioned decree was rendered he was in the peaceable possession of said tracts of land, and that he owned the same; (2) that after failure to make these complainants parties respondent the court had no jurisdiction to render a binding decree affecting their rights in the real property described.

Is the present bill multifarious, in that it seeks cancellation of the decree of January 25, 1912, in the case of Harry Gill v. Abraham G. More, in so far as it relates to complainants' interest in the lands in question and the adjudication of Gill's right or interest therein?

The case relied on by appellant is Gordon, Adm'r, v. Ross, 63 Ala. 363, where, to prevent surprise and confusion in making defense, which would result from blending in one suit distinct causes of action, the rule was declared that each "aspect or alternative" must entitle the complainant to the same relief; that is to say, must entitle the complainant to relief the same "in kind if not in degree"; so that, if the bill be confessed, in decreeing the relief on one state of facts, the court would also grant the relief appropriate to the alternate state of facts. Code 1907, § 3095; Curry v. Peebles, 83 Ala. 225, 3 So. 622; Globe Co. v. Thacher, 87 Ala. 458, 6 So. 366; Bentley v. Barnes, 155 Ala. 659, 47 So. 159; Bellevue Cem. Co. v. McEvers, 168 Ala. 535, 53 So. 272; Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 So. 886; Kant v. A., B. & A.R. Co., 189 Ala. 48, 66 So. 598; Manegold v. Beavan, 189 Ala. 241, 66 So. 448; Wheat v. Wheat, 190 Ala. 461, 67 So. 417; Webb v. Butler, 192 Ala. 287, 68 So. 369, Ann.Cas.1916D, 815; Stewart v. Snider, 72 So. 409.

The demurrer on the ground of multifariousness was properly overruled. In the perfection of service by publication (Code, §§ 3106, 5308) in a proceeding to quiet title (sections 5443-5449), were these complainants made parties respondent, and were their property rights concluded, in the suit of Gill v. More et al., No. 444? The pertinent averments on this point of the original bill filed in the instant case are:

"Your oratrices further charge the fact to be that they nor either of them was a party to said suit filed by said Harry Gill aforesaid; that neither of them was ever served with any process whatever issuing from this honorable court in said suit; that no notice by proper publication was ever given to them or either of them of said suit, and as a matter of fact your oratrices charge the truth to be that neither one of them knew of the existence of said suit at any time while the same was pending, and never heard until in January, 1916, that there was such suit filed by said Harry Gill in this court. ***

"Oratrices further charge that in the third section of his said bill of complaint the said Harry Gill sets out the names of the defendants to his said suit, but the names of your oratrices do not appear therein or anywhere else in said bill, nor is the name of their father, Abraham G. More, mentioned anywhere in said bill. The only pretense that your oratrices were parties to said suit arises out of an inference or supposition which the said Harry Gill would have the court to indulge, that because that in the third section of his bill this statement is made, 'Abraham G. Moore, or, if dead, his devisees, heirs, and next of kin *** [naming others], all of whom are made defendants to this bill of complaint, claim or are reputed to claim the interests in said land as set out and alleged in paragraphs first and second of this bill,' and also this other statement made in the fourth section of the bill, to wit, 'Complainant further shows that he has made and caused to be made diligent search and inquiry to ascertain the names, ages, and residences of the devisees, heirs, and next of kin of said Abraham G. Moore, and also to ascertain whether said Abraham G. Moore is living or dead, and where he resides, if living, but after diligent inquiry has been unable to ascertain any of these facts,' and also this other statement in the bill, in the prayer for process, to wit. 'That service by publication be had upon said Abraham G. Moore, or, if dead, his devisees, heirs, and next of kin, ***' your oratrices are and were the identical persons made defendants to said bill under said statements, although their father, Abraham G. More, and your oratrices have never claimed said lands under the name or appellation of 'Moore.' "

As to what the bill in the former suit contained in regard to the parties defendant, it is pertinent to observe that it failed to positively aver that the said Abraham G. Moore was dead. On the contrary, it alleged that diligent inquiry had failed to disclose that fact. Unless he was so averred and shown to be dead, presumably he was then living; and, being in life, he could have no heirs or devisees to be made parties to a suit affecting his lands in this state. If living, he was sought to be made a party defendant; if dead, by alternative averment, his "devisees, heirs, or next of kin" were sought to be made parties respondent.

The decree rendered on such indefinite averment as to the parties respondent, following the language of the bill, was to that extent indefinite as to the parties concluded by the decree. This court has held that, if a party to the proceeding be dead at the time of the rendition of judgment against him, the judgment is void, notwithstanding the averment of the necessary jurisdictional facts (Whitlow v. Echols, 78 Ala. 206, 210; Johnson v. Johnson, 40 Ala. 247, 253), and also that, where a given party is not dead, but is averred so to be, the letters of administration granted and the administration had on such an one's estate are void ( Duncan & Hooper v. Stewart, 25 Ala. 408, 60 Am.Dec. 527).

If, when Gill filed his bill to quiet title, Abraham G. More was dead, More was not made a party, however perfect the constructive notice given as to him. If his heirs or devisees were to be proper parties respondent, the death of the ancestor should have been averred and proven. Without such definite averment of parties respondent, a decree cannot be rendered against definite parties of the class of heirs or devisees. Harris v. Johnson, 176 Ala. 445, 58 So. 426; Smith v. Murphy, 58 Ala. 630; Winn v. Fitzwater, 151 Ala. 171, 44 So. 97.

It is fundamental that the facts averred must be sufficient to extend jurisdiction to the tribunal assuming to exercise it over the res, and that the notice, actual or constructive, must be sufficient to bring within that jurisdiction the reus. For, as Chief Justice Beasley observed, judgment without jurisdiction over the person "is of no legal avail at home or abroad." Elsasser v. Haines, 52 N.J.Law, 10, 15, 18 A. 1095, 1097. The sufficiency of averment of jurisdictional facts to enable the tribunal to hear and determine must be tested by the law of force within the state where the right of action is conferred and sought to be enforced.

The reasonableness of the prescribed notice, or of service of process by publication and the opportunity to become parties to such judicial proceeding affecting personal or property rights, and the right of appeal from an adverse decision thereon, are questions governed by the constructions by the Supreme Court of the United States of such state statutes providing for due process of law under the Fourteenth Amendment to the federal Constitution. In passing it may be remarked that due process of law in matters of taxation and local assessment should not be confused with that in judicial proceedings between private parties. Gudenrath v. City of Huntsville, 194 Ala. 568, 69 So. 629; 4 Dillon, Mun.Corp. § 1365, pp. 2365, 2366.

Appellees (complainants below), in addition to averring fraud on the jurisdiction of the chancery court in the former suit as to the res, point to the fact that they had no knowledge of the pendency of said suit to quiet title (Gill v. Moore et al.), and contend that the published notice thereof was ineffectual as against them: (1) Because the name of their ancestor was misspelled; and (2) because they were not properly made parties as an unknown class.

As to the misspelling of the name of the deceased father of the complainants, see the recognized differences in the name of "Moore" and "More" given in the Century and Standard Dictionaries, volumes of proper names. Be that as it may we shall see that jurisdiction of parties defendant, where process is served by publication, is not determined alone by orthography, or by the rule of idem sonans, but by the fact of knowledge of the pendency of the cause, or by a published or posted notice thereof, from which the law imputes that knowledge to defendants.

Of constructive notice generally held sufficient or not sufficient to bind innocent third parties under other statutes, the decisions thereon may aid somewhat in determining whether the notice sought to be given ...