Hillens v. Brinsfield

• Decision Date: 08 January 1897
• Citation: 113 Ala. 304,21 So. 208
• Parties: HILLENS ET AL. v. BRINSFIELD.
• Court: Alabama Supreme Court

21 So. 208

113 Ala. 304

HILLENS ET AL. v. BRINSFIELD.

Supreme Court of Alabama

January 8, 1897

Appeal from probate court, Montgomery county; J. B. Gaston, Judge.

Proceeding by Emma Brinsfield against Charles Hillens and Kate Monfee. On motion of petitioner to enter decree nunc pro tunc, Artie Elizabeth Hillens intervened. Decree for petitioner. Defendant Monfee and intervener appeal. Affirmed.

Chas Wilkinson, for appellants.

Thos H. Watts, for appellee.

BRICKELL C.J.

A petition was filed in the probate court of Montgomery count by Emma Brinsfield alleging that she and Kate Monfee were tenants in common of certain lands, each owning a half interest, and containing all other allegations made necessary by statute in a proceeding to sell lands for partition. An appeal was taken by Kate Monfee and Charles Hillens (who was also made a defendant to the petition, as claiming some interest in the lands) from a final decree alleged to have been rendered in the proceeding, directing a sale of the lands. On that appeal, the decree was affirmed. Hillens v. Brinsfield, 18 So. 604. After the affirmance the plaintiff filed her petition in the court below, alleging there had been an omission to formally enter the decree, and praying it might be entered nunc pro tunc. In this proceeding Artie Elizabeth Hillens, wife of Charles Hillens, intervened by petition, setting up ownership and adverse possession of the lands, predicated on a deed executed to her as a purchaser at a sale for taxes. The court overruled her petition, and directed the entry of the decree of sale nunc pro tunc, and from his decree Mrs. Hillens and Kate Monfee appeal, and jointly assign errors.

On the former appeal, in disposing of the claim of title and adverse possession asserted by Charles Hillens, we said: "He was not alleged to be a tenant in common entitled to share in the distribution of the proceeds, and he could not properly be brought in to litigate in this proceeding his adverse assertions of title." The same observations apply with even greater force to the intervention filed by Mrs. Hillens for, if the plaintiff could not properly have brought her in it is very obvious she was not entitled to intervene on her own motion. The court might have disposed of her petition on this ground alone. But there is another reason, equally conclusive. The motion in the probate court was to enter a judgment already rendered, and on such a...