Hamilton v. Tolley

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, J.
• Citation: Hamilton v. Tolley, 209 Ala. 533, 96 So. 584 (Ala. 1923)
• Decision Date: 26 April 1923
• Docket Number: 8 Div. 509.
• Parties: HAMILTON ET AL. v. TOLLEY ET AL.

96 So. 584

209 Ala. 533

HAMILTON ET AL. v. TOLLEY ET AL.

8 Div. 509.

Supreme Court of Alabama

April 26, 1923

Rehearing Denied May 24, 1923.

Appeal from Circuit Court, Limestone County; Osceola Kyle, Judge.

Bill of review by Price Alexander Hamilton and others against James H. Tolley and others, to reverse and annul a former decree and for a sale or partition of lands. From a decree for respondents, complainants appeal. Affirmed.

E. W Godbey, of Decatur, for appellants.

Callahan & Harris, of Decatur, for appellees.

THOMAS J.

In the opinion on last appeal the jurisdiction of the chancery court of Limestone county to order or confirm the sale in question was sustained, "notwithstanding one of the purchasers *** was the trustee," and, having acquired jurisdiction "its decree cannot be impeached by a separate bill of review (on the ground that the trustee was interested as purchaser), except for fraud" in the procurement of the judgment and in the proceedings by which it was obtained. Tolley v. Hamilton, 206 Ala. 634, 91 So. 610; Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172. The proper parties, and due representation thereof by a member of the same class with identical rights, made parties to the proceedings, were determined by the decree, holding that "after-born members of the same class with identical rights" were bound. Tolley v. Hamilton, supra; Letcher v. Allen, 180 Ala. 254, 60 So. 828; Elmore v. Galligher, 205 Ala. 230, 232, 87 So. 349; see, also, Crawford v. Carlisle, 206 Ala. 379, 384 385, 386, 89 So. 565.

The original bill filed May 26, 1920, averred the age and infancy of certain parties thereto; that "a guardian ad litem was appointed for the supposed and ostensible infant defendants, who accepted, and denied the averments of the said bill," and that "the said chancery court rendered a decree confirming the sale of the trust property to said trustee and his joint adventurer. ***" Section 7 in instant original bill. The infancy of certain of respondents is averred in paragraphs 1, 2, and 12, subsec. (e), of the original bill; and in Exhibit B (the decree) it is recited:

"*** That W. H. Turrentine, Esquire, a practicing attorney, has been duly and legally appointed, and has accepted said appointment in writing, as guardian ad litem for the infant defendants, and has filed his answer for them as such guardian ad litem."

The amended bill filed February 15, 1922, exhibits the specific terms of the affidavit of complainant's counsel in the original suit (decree therein being rendered March 2, 1909). The affidavit is:

"The State of Alabama, Limestone County.

"This day personally appeared before me, W. R. Walker, who being first duly sworn deposes and says that he is the solicitor for complainant in this cause; that he is informed and believes and on such information and belief, states that in his opinion the parties defendant named as infants are such.

"W. R. Walker.

"Sworn to and subscribed before me this 22d day of Feb., 1909.

"Bessie Davis, Register."

It is further averred:

"There was in said cause no other affidavit to the bill or other affidavit as to the age, status and condition of said infants as to their custodian."

The only process averred to have issued from the register to certain of the respondents is exhibited; the order of the register appointing a guardian ad litem in said cause reciting therein the names of the infants under the age of 14 years, service of summons on infants named as being over 14 years and on "custodian" of infants under 14 years; reciting the selection by infants over 14 years of age of a guardian ad litem was W. H. Turrentine, and the appointment by the register of said Turrentine as "a suitable person to act as guardian ad litem for all said infants above named"; that, "the said W. H. Turrentine having filed his consent, in writing, to act as such," it was ordered by the register that the said W. H. Turrentine "is appointed guardian ad litem in this cause for the said infant defendants." The note of testimony for complainant contains the statement of submission, among other things, on the "nomination of W. H. Turrentine as guardian ad litem by William Edward and Martha Elizabeth Hamilton, appointment and acceptance of W. H. Turrentine as guardian ad litem of minor defendants, answer of W. H. Turrentine as guardian ad litem of infant defendants," and that for defendants was submitted on answer of guardian ad litem depositions of witnesses named and answers of parties named. The answer of the guardian ad litem, exhibited by the amended bill, was for "William Edward Hamilton, Martha Elizabeth Hamilton, Price Hamilton, Jr., Emma Malone Hamilton, and Erle Tillman Hamilton, the infants in the above-styled cause," some of whom are complainants in the instant bill as amended.

The averments of the amended bill of service of process on the five named minors are citations or summons by the register issuing to the sheriff, etc., commanding him to summon Price Hamilton, Jr., Emma Malone Hamilton, and Erle Tillman Hamilton by service of Yancy P. Hamilton, as their custodian. Return thereof by the sheriff indorsed thereon was:

"Executed by handing the [to] Yancy P. Hamilton as custodian of Price Hamilton, Jr., Emma Malone Hamilton and Earle Tillman Hamilton, a copy of the within" summons, "on the 22d day of Feby., 1909."

The summons issued by the register to the sheriff "commanded" him "to summon Martha Elizabeth Hamilton and William Edward Hamilton, infants over the age of 14 years, to appear and plead," etc., and return of the sheriff made thereon was:

"Executed by handing each of the defendants William Edward Hamilton and Martha Elizabeth Hamilton a copy of the within" summons "on the 22d day of Feby., 1909."

The appointment of guardian ad litem by the register of same date recites the fact that, by the affidavit of W. R. Walker, the defendants William Edward Hamilton and Martha Elizabeth Hamilton "are infants over the age of 14 years," and Price Hamilton, Jr., Emma Malone Hamilton, and Erle Tillman Hamilton are "in the belief of affiant infants under the age of 14 years, and that a summons on the bill of complaint in this cause was served upon the said William Edward Hamilton and Martha Elizabeth Hamilton personally, and upon Yancy P. Hamilton as custodian of Price Hamilton, Jr., Emma Malone Hamilton, and Erle Tillman Hamilton" and for whom W. H. Turrentine was nominated and appointed and accepted as guardian ad litem for "said infants" in aforesaid cause.

The prayer of the aforementioned bill was that "Yancy P. Hamilton, Annie M. Hamilton, Susie Hamilton Roberts, the wife of Robert Roberts, William Edward Hamilton, and Martha E. Hamilton, Price Hamilton, Jr., Edward Malone Hamilton, and Erle Tillman Hamilton be, by proper process, made party defendants hereto;" that the court appoint "a guardian ad litem for each of the infant beneficiaries herein named, to represent and protect their interests upon the hearing thereof." The naming of the respective infants, their ages-whether above or less than 14 years of age-in the aforesaid bill, praying of them as parties, for the issue to each of them of proper process, and the evidence exhibited, of the issue and service of process made on them, or their custodian, the appointment of a guardian ad litem to represent them under the order of the court, was of such nature as to bind them, under the present bill as amended, by decree rendered, although there may not have been such literal compliance with chancery rule 23, Code 1907, p. 1535, as to prevent a reversal of the decree on appeal. No adverse interest was disclosed to have existed between the several minors; there was no reason why the same guardian ad litem should not be named to represent them during the conduct of the cause and to final hearing. Estes v. Bridgforth, 114 Ala. 221, 21 So. 512. The chancery rule in question comes from the Code of 1876, No. 26, p. 165, and is of like import in the succeeding Codes. Code 1907, rules 20, 22, pp. 1533, 1535. In Day v. Southwell, 3 Wis. 657, construing a statute of like import, as to the requirement of the affidavit of counsel, it is held that the expressions "in his opinion" and "in his belief" were synonymous in the sense used in the affidavit. It is not necessary that we express an opinion as to our holding of the sufficiency of such affidavit when duly challenged on appeal from such decree. It is sufficient to say that such is not the case before us. It may be observed that the order appointing the guardian ad litem recites the fact that-

"It is made to appear to the register by the affidavit of W. R. Walker that the defendants William Edward Hamilton, Martha Elizabeth Hamilton, are infants over the age of 14 and Price Hamilton, Jr., Emma Malone Hamilton, and Erle Tillman Hamilton are in the belief of affiant infants under the age of 14 years.' (Italics supplied.)

The case of Tabor v. Lorance, 53 Ala. 543, 545, arose out of a petition "to set aside as void a decree of the court, and sale of land under it, *** on the ground that there was no such service of process as gave the court jurisdiction of petitioner;" and the court said:

"The recital in the record, 'It appearing that the defendant, Harriet Lorance, is under the age of 14 years, residing with her grandmother, who is of adverse interest,' must be understood as affirming that these facts were proved to the court, although no affidavit thereof is now found in the record; and the appointment thereupon of Horatio O. Pettus as guardian ad litem for her, and his acceptance in writing of that office, and filing of answer for her, show that the chancellor took charge, as was his duty, of the interest of the infant. According to the decision of this court in Preston v.

...