Griffin v. Proctor

• Decision Date: 08 April 1943
• Docket Number: 6 Div. 64.
• Citation: 244 Ala. 537,14 So.2d 116
• Parties: GRIFFIN v. PROCTOR.
• Court: Alabama Supreme Court

14 So.2d 116

244 Ala. 537

GRIFFIN v. PROCTOR.

6 Div. 64.

Supreme Court of Alabama

April 8, 1943

Rehearing Denied June 30, 1943.

Earl McBee, of Birmingham, and Powell, Albritton & Albritton, of Andalusia, for appellant.

Powell & Fuller, of Andalusia, for appellee.

LAWSON, Justice.

The appellee, George H. Proctor, as administrator de bonis non of the estate of A. W. Woodham, deceased, filed a motion or petition, on the equity side of the Circuit Court of the Tenth Judicial Circuit, to vacate and set aside a final decree rendered in that court in the case of Barley v Wright et al., 233 Ala. 283, 171 So. 247, in so far as that decree "adjudicates any right of or liability against the said A. W. Woodham, or his estate," on the ground that said final decree was to that extent void in that at the time it was rendered, A. W. Woodham was dead and that upon the death of Woodham the suit abated as to him.

The court below decreed that the final decree in the case of Barley v. Wright et al., supra, was null and void in so far as it affected the estate of A. W. Woodham, deceased.

The appellant, who is the administrator of an adverse party evidently being uncertain as to whether appeal was the proper mode of securing a review of the trial court's action in declaring the said final decree null and void, has presented this case here by appeal or in the alternative on petition for mandamus.

Appellant's apprehension as to the proper method of presenting such a question to this court is, we think, well founded in view of the real or apparent conflict in our decisions.

We have carefully reviewed all the decisions which have come to our attention relating to the proper method of securing a review by this court from such action of the trial court. In Broyles v. Maddox, 43 Ala. 357, it was held that where a trial court vacates an original decree and in the order of vacation also grants a new trial, the remedy is by petition for mandamus and not by appeal. In Ex parte Morris & Blair, 44 Ala. 361, appeal was held to be the proper method for the reason that the trial court merely vacated the original decree and did not grant a new trial. In Bruce's Executrix v. Strickland's Adm'r, 47 Ala. 192, appeal was held to be the proper mode of review by this court of a decree of the lower court merely vacating the original decree. In Tabor v. Lorance, 53 Ala 543, the decree from which the appeal was taken to this court not only vacated the original decree, but also expressly permitted the parties to appear and make defense in the original cause. The distinction which was made in the case of Ex parte Morris & Blair, supra, was not made in this case. Appeal was held to be the proper method of review.

This procedural question does not seem to have been expressly dealt with again until the decision in the case of Johnson v. Dismukes, 104 Ala. 520, 16 So. 424, in which case an appeal was taken to this court from an order of the lower court setting aside and vacating a judgment of the circuit court ordering a sale of land under execution from a justice of the peace which had been previously entered. Upon submission here the appellee moved to dismiss the appeal on the ground that the judgment appealed from was not such a final judgment as would support an appeal. This court, although finding that the lower court correctly vacated the original decree, which was void on its face, held that the motion to dismiss the appeal should have been granted for the reason that such judgments or orders are not final in any proper sense of the term.

Appeal was held to be the proper method of review in the case of Gartman et al. v. Lightner et al., 160 Ala. 202, 49 So. 412, by a majority of the court. The effect of that decision is that this court should entertain an appeal from an order or decree vacating a former decree for the purpose of determining whether or not the original decree was void. In this case it was determined that the original decree, while perhaps irregular, was not void and, therefore, the vacating decree was void and hence would not support an appeal and the appeal was, therefore, dismissed. To like effect is the decision in the case of Singo v. McGhee, 160 Ala. 245, 49 So. 290.

In a number of cases we have entertained appeals and in other cases petitions for mandamus without expressly dealing with the procedural question. We have entertained an appeal in the following cases without considering the question as to whether or not the appellant had pursued the proper remedy: Laird, Adm'r, v. Reese, 43 Ala. 148; Petty v. Britt's Legatees, 46 Ala. 491; Pettus, Adm'r, v. McClannahan, 52 Ala. 55; Buchanan v. Thomason, 70 Ala. 401; Stevenson v. Murray, 87 Ala. 442, 6 So. 301; Chamblee et al. v. Cole, 128 Ala. 649, 30 So. 630; Hobson-Starnes Coal Co. v. Alabama Coal & Coke Co., 189 Ala. 481, 66 So. 622; Campbell v. Beyers, 189 Ala. 307, 66 So. 651.

The trial court's action in vacating a judgment or decree on the ground that it was void has been here considered on original petition for mandamus filed in this court without any discussion of the procedural question. Ex parte Massie, 131 Ala. 62, 31 So. 483, 56 L.R.A. 671, 90 Am. St.Rep. 20; Ex parte City Bank & Trust Co., 200 Ala. 440, 76 So. 372; State ex rel. St. Peter's M. Baptist Church v. Smith, Judge, 215 Ala. 449, 111 So. 28.

In view of the conflict which is apparent in the above referred to cases, we feel constrained to here set out what we think to be the proper mode of presenting to this court for review the action of the trial court on a motion or petition to vacate an alleged void decree.

Where the motion to vacate the original decree is granted and a new trial is ordered, or the original cause is in any wise reinstated for further proceedings, the correct method of review is by mandamus.

In a case where the motion to vacate the original decree is granted, but the effect of the vacating decree is not to reinstate the original cause for further proceedings, the proper remedy is by appeal.

We do not agree with the conclusion reached in the case of Gartman et al. v. Lightner et al., supra, to the effect that the appeal must be dismissed where it is determined here that the original decree was improperly vacated. We are of the opinion that the mere fact that we determine that the original decree was valid does not necessarily result in the vacating decree being void and, therefore, incapable of supporting an appeal. We are of the opinion that where the original decree is found to be valid the vacating decree is merely erroneous and will support an appeal. Baker v. Barclift, 76 Ala. 414, 417.

There seems to be no conflict in our cases as to the proper mode of review where the trial court has refused to vacate the original decree. The remedy is by appeal. Johnson v. Johnson's Administrator, 40 Ala. 247; Satcher v. Satcher's Adm'r, 41 Ala. 26, 91 Am.Dec. 498; Sweeney et al. v. Tritsch, 151 Ala. 242, 44 So. 184; Hynes et al. v. Underwood, et al., 191 Ala. 90, 67 So. 994.

The decree from which the appeal was taken in this case does not have the effect of reinstating the original cause. It merely declared the original decree null and void in so far as it affected the deceased respondent-cross-complainant, A. W. Woodham-and his estate. We are of the opinion, therefore, that appeal is the proper mode of review in this case. The petition for mandamus, therefore, need not be considered.

It is well settled that where a decree has been rendered which is void on the face of the record, the court rendering it possesses the inherent power, and should, on motion, vacate said decree. Johnson v. Johnson's Adm'r, supra; Buchanan v. Thomason, supra; Chamblee et al. v. Cole, supra; Sweeney et al. v. Tritsch, supra; State ex rel. St. Peter's M. Baptist Church v. Smith, Judge, supra. While as a general rule the court's authority is limited to matters which appear on the face of the record, such limitation is not applicable in the event of the death of either party when the judgment or decree was rendered. Johnson v. Johnson's Adm'r., supra; Buchanan v. Thomason, supra. In the Johnson case it was said: "The true rule seems to be, that any court should, on a proper application, vacate any final order, decree, or judgment, at any time subsequent to its rendition, if the same is void on the face of the proceedings and record; but not where it appears to be void from facts dehors the record, except in the case of the death of either party to the suit or proceeding, at the time the judgment or decree is rendered, and in such other cases as may be authorized by long practice, or by statute." Campbell v. Beyers, supra; Ex parte City Bank & Trust Co., supra.

The rule has been for many years in this jurisdiction that a judgment in favor of or against a dead man is void, and not merely voidable. McDonald v. Womack, 214 Ala. 309, 107 So. 812; Ex Parte Massie, 131 Ala. 62, 31 So. 483, 56 L.R.A. 671, 90 Am.St.Rep. 20; Powe v. McLeod, 76 Ala. 418; Chapman v. Chapman, 194 Ala. 518, 70 So. 121; Hood v. Mobile Bank, 9 Ala. 335.

The determination of the question as to whether or not the lower court erred in rendering the decree from which the appeal was perfected to this court necessarily requires a consideration of the question as to whether or not the final decree in the case of Barley v. Wright et al., supra, is void.

The record in the case of Barley v. Wright et al., supra, is not set out in this record, but reference is made thereto in the motion. This court will sometimes examine the record on another appeal to ascertain the issues of law there involved and the result and its influence on the question here presented. This practice has been followed when the proceedings refer to the record on former appeal and...