Handy v. Gray
| Decision Date | 04 May 1922 |
| Docket Number | 3 Div. 531. |
| Citation | 207 Ala. 615,93 So. 614 |
| Court | Alabama Supreme Court |
| Parties | HANDY v. GRAY. |
Rehearing Denied June 1, 1922.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Bill by T. J. Gray against Carrie S. H. Handy to annul judgment at law and to enjoin execution thereon. From a decree overruling demurrers to the bill and motion to dissolve temporary injunction, defendant appeals. Reversed and remanded.
Hill Hill, Whiting & Thomas, & Montgomery, for appellant.
J. J Mayfield and Holloway & Hill, all of Montgomery, for appellee.
Complainant (appellee) filed this bill on the equity side of the circuit court to vacate and annul a judgment in ejectment recovered by defendant and to enjoin the execution of that judgment on the ground that he had not been served with process in the action at law, nor had he ever appeared therein or in any wise waived his right to service and a hearing. The judgment against complainant was a judgment by default. Complainant avers that he had a meritorious defense. The original bill was filed November 1, 1920.
November 26, 1920, defendant filed an answer, demurrer, and plea. The plea set forth the fact that within four months from the rendition of the judgment in ejectment, complainant here, defendant there, filed his application for a rehearing under section 5372 of the Code, wherein he alleged that as matter of fact summons and complaint in the ejectment suit had never been served on him and that he had no notice of said suit until after judgment had been rendered; that on this application judgment was rendered against the complainant in this cause, and said judgment was afterwards affirmed in the Supreme Court. This plea showed an adjudication of the issue raised by the original bill in this cause and presented a perfect defense. Haughy v. Strang, 2 Port. 177, 27 Am. Dec. 648; 23 Cyc. 1017, 1018.
So complainant amended his bill, seeking by his amendment to set up an equitable title to the land in controversy-a title which the law court had no jurisdiction to adjudicate. By this amendment complainant averred that he had bought the land from the vendor under whom the defendant in this cause claims title, that the lands in question were pointed out to him as a part of the land conveyed to him, that both he and his vendor intended that this should pass by the deed which was thereupon executed, and that he had been in the adverse possession thereof for more than 10 years before the commencement of defendant's action of ejectment. The prayer is, among other things, that a decree be rendered declaring defendant's paper title to be a cloud upon his title, and that defendant be perpetually enjoined from asserting her rights under the judgment in ejectment.
Temporary injunction, as also prayed, was issued. The court overruled defendant's motion to dissolve the temporary injunction and her demurrer to the amended bill, after which this appeal.
The amendment added nothing to the bill. Had the amendment presented a case invoking the jurisdiction of the court to reform the deed under which complainant claimed, as in the circumstances of an ordinary bill to reform, there is question, notwithstanding the decision in Stricklin v Kimbrell, 193 Ala. 211, 69 So. 14, cited by appellee, whether the rule of cases like Dailey v. Koepple, 164 Ala. 317, 51 So. 348, would not prevent his maintenance of the bill. But the amendment makes no averments sufficient to maintain a case for reformation, nor is there any prayer for such relief. Therefore it is that the amendment does nothing more than set up a legal title by adverse possession-a title which, along with the paper titles under which the parties claimed, was adjudicated by the judgment by default as conclusively as if complainant had appeared in the law court and made every defense available. Issues so adjudicated cannot be litigated over again in any subsequent...
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