J.R. McClenney and Son, Inc. v. Reimer
Decision Date | 01 July 1983 |
Citation | 435 So.2d 50 |
Parties | J.R. McCLENNEY AND SON, INC. v. Kenneth H. REIMER and Harland O. Savage. 82-599. |
Court | Alabama Supreme Court |
Joseph L. Boohaker, Birmingham, for appellant.
James P. O'Neal of Barnett, Tingle, Noble & Sexton, Birmingham, for appellees.
This is an appeal from an order of the trial court denying the defendant's motion to vacate a final judgment pursuant to Rule 60(b)(4), Alabama Rules of Civil Procedure. We affirm.
The action involves a boundary line dispute. The plaintiffs filed suit on April 17, 1980, alleging that they and the defendant were coterminous property owners and that the defendant had trespassed and encroached on the plaintiffs' land and had begun construction of a building on plaintiffs' land. Defendant denied these allegations by answer filed on April 30, 1980.
On August 18, 1981, the trial court appointed a surveyor to determine the boundary line between the plaintiffs' and defendant's properties. The survey was conducted, and the report was submitted to the court on January 3, 1982. On September 27, 1982, the trial court entered its final decree approving the report and fixing the boundary line. The defendant was ordered to remove its encroachment upon the plaintiffs' land.
On November 24, the defendant filed its motion to vacate the judgment of September 27, 1982.
The basis of the defendant's motion to vacate the judgment was the failure of the plaintiffs to name the defendant's mortgagee City National Bank of Birmingham, as a party defendant. It alleged that City National was a necessary and indispensable party and, because the mortgagee bank was not made a party, the judgment of the trial court was void.
The court held a hearing on the motion to vacate and entered the following order, denying the same:
We agree that under the facts of this case the defendant's conduct has estopped it from raising the issue of its own mortgagee's nonjoinder for the first time by way of a post-judgment motion. The defendant did not raise the nonjoinder either by a Rule 12(b)(7), ARCP, motion, which was available to it, or by Rule 21, ARCP, either of which would have been appropriate. Instead, it waited until the final judgment was entered and then beyond appeal time, knowing all the while that its own mortgagee was not joined. It then, for the first time, asserted...
To continue reading
Request your trial-
LIBERTY NAT. v. UNIV. OF ALA. HEALTH SERVS.
...is a necessary one or an indispensable one. This question is to be decided in the context of each particular case. J.R. McClenney & Son v. Reimer, 435 So.2d 50 (Ala.1983), citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968)." Holland ......
-
Miller v. City of Birmingham
...is a necessary one or an indispensable one. This question is to be decided in the context of each particular case. J.R. McClenney & Son v. Reimer, 435 So.2d 50 (Ala. 1983), citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968).’" Hollan......
-
Neal v. Neal
...adjudicate any issues affecting that entity's interests"). But see Long v. Vielle, 549 So.2d 968 (Ala.1989), and J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d 50 (Ala.1983). On the other hand, neither the Florida attorney general nor any other person or entity in Florida seems to have bee......
-
Sumter Cnty. Bd. of Educ. v. Univ. of W. Ala.
...certiorari denied, 347 U.S. 989, 74 S.Ct. 850, 98 L.Ed. 1123 [(1954) ].’"1 Lyons, Alabama Practice, at 389." J.R. McClenney & Son, Inc. v. Reimer, 435 So. 2d 50, 52 (Ala. 1983)."There is no prescribed formula to be mechanically applied in every case to determine whether a party is an indisp......