Jetton v. Jetton

• Decision Date: 06 February 1987
• Citation: 502 So.2d 756
• Parties: Joseph P. JETTON, Jr., and June C. Jetton v. Nancy Ray JETTON and Dianne J. Howard. 85-876.
• Court: Alabama Supreme Court

Page 756

502 So.2d 756

Joseph P. JETTON, Jr., and June C. Jetton v. Nancy Ray JETTON and Dianne J. Howard.

85-876.

Supreme Court of Alabama.

Feb. 6, 1987.

Willis E. Isaac, Montgomery, for appellants.

William H. Mills of Redden, Mills & Clark, Birmingham, for appellees.

SHORES, Justice.

This is an appeal by the intervenors, Joseph P. and June C. Jetton, from a judgment of March 24, 1986, confirming the sale of certain property located in Marshall County, Alabama.

The pertinent facts are as follows. This action began on June 3, 1976, when plaintiff Nancy Ray Jetton filed a complaint against defendants Diane Jetton Howard and her husband Joe Howard. Plaintiff alleged that on March 1, 1969, she and her sister, defendant Dianne Jetton Howard, each owned an undivided one-half remainder interest in fee in approximately 253 acres of farmland located in Marshall County. Appellant Joseph P. Jetton had a life estate in the property. Plaintiff contended that, based on a series of misrepresentations made by defendant Diane J. Howard to plaintiff, plaintiff was fraudulently induced to sell her interest in the Marshall County property to that defendant. Plaintiff sought voidance of the deed and prayed for $200,000 plus costs.

On June 21, 1976, Joseph P. Jetton and June C. Jetton (intervenors) moved to intervene in the present cause.

On June 12, 1978, the parties entered into an agreement and a consent judgment was entered that date settling all issues and controversies between them relating to the real property in issue. The consent judgment ordered a judicial sale of the real property in which all of the parties agreed to an interest and a division of the proceeds according to a formula set out in the judgment.

On August 8, 1978, the intervenors filed a motion to set aside the consent judgment of June 12, 1978. This motion was denied on December 19, 1978. On October 4, 1979, the trial court entered an order stating that all judgments previously entered were final and appealable. On October 31, 1979, the intervenors filed a "motion for rehearing" asking the trial court to set aside its order entered on October 4, 1979. This motion was denied on December 21, 1979.

On May 15, 1984, the trial court entered an order, on motion of the parties, staying the scheduled sale and authorizing the parties to secure an auctioneer or auction company to assist in the sale of the property.

On April 12, 1985, the trial court entered an order dissolving all previous stays and directing a sale of the subject property in accordance with the previous consent judgment. The sale was advertised and was conducted on February 27, 1986. On February 28, 1986, the clerk filed a report of sale.

On March 3, 1986, the trial court entered an order setting the report of sale for hearing and consideration on March 14, 1986, and directing that any exceptions to the report be filed forthwith. A hearing was held by the trial court on the clerk's report on March 14, 1986. On the day of the hearing, intervenors filed an "Objection to Sale." Following the hearing the trial court took the matter under advisement and on March 24, 1986, entered a judgment confirming the sale. The intervenors filed this appeal on April 23, 1986, contending that the trial court erred when it confirmed the sale because: (1) Joseph P. Jetton did not receive adequate compensation for his life estate in the disputed property; (2) the trial court did not instruct the intervenors to obtain legal counsel before approving the consent judgment; (3) the sale and distribution of proceeds were improper; and (4) it was not shown that the price of the property was adequate.

The appellees, Nancy Ray Jetton and Diane Jetton Howard, state that most of the contentions raised by intervenors in this appeal are attacking the June 12, 1978, consent judgment. An attack on that judgment in this proceeding, appellees contend, cannot be considered because, they say, an appeal of that judgment is now untimely. Appellees state that the June 12, 1978, consent judgment was in all respects a final judgment because it ascertained and settled equities between the parties. Furthermore, they point out that, to remove any uncertainties about the finality of that judgment, the trial court, on October 4, 1979, entered an order explicitly stating that all judgments previously entered were final judgments and appealable. The appellees note that the intervenors then filed a timely motion for rehearing, which was denied on December 21, 1979. Consequently, appellees argue that a review of the June 12, 1978, judgment is not available in an appeal from the March 24, 1986, judgment, because the notice of appeal in this case was not filed within 42 days from June 12, 1978, or from December 21, 1979, when the intervenors' motion for rehearing was denied. ¹

It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved. Kelley v. U.S.A. Oil Corp., 363 So.2d 758 (Ala.1978); Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So.2d 653 (1967). However, as this Court has previously noted, decrees and orders entered in equity proceedings involving the sale of real property for division of the proceeds present an unusual situation:

"Equity decrees may be partly final and partly interlocutory. A decree which ascertains and declares the rights of the parties and settles the equities is a final decree, although it provides for further proceedings under the direction of the court in order to make the final decree effective, such decree is interlocutory and remains within the control of the court because as to such decree and further proceedings thereunder the cause remains in fieri. * * *

"This rule is strikingly illustrated in suits in equity to sell lands for division. When the court orders the land sold, that decree is final insofar as it will support an appeal. Three illustrations of our entertaining appeals from such decrees are Berry v. Berry, 266 Ala. 252, 95 So.2d 798; Coppett v. Monahan, 267 Ala. 572, 103 So.2d 169; Raper v. Belk, 276 Ala. 370, 162 So.2d 465. We have also held that the decree confirming the sale is the final decree in judicial proceedings for the sale of lands for division, Pettit v. Gibson, 201 Ala. 177, 77 So. 703; and that a sale of land for division among joint owners is not binding until confirmed by the court."

Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981), quoting Sexton v. Sexton, 280 Ala. 479, 195 So.2d 531 (1967).

Thus, the intervenors could have appealed either from the judgment on June 12, 1978, ordering the sale of the land, or from the judgment on March 24, 1986, confirming the sale. The intervenors appealed from the confirmation judgment. They were entitled to raise objections arising from both the initial judgment ordering the land sold, and from the judgment confirming the sale, so long as the trial judge was given an opportunity to rule on such objections, and, in this case, he was.

Appellees next contend that the judgment of June 12, 1978, ordering the sale of land is not reviewable because it was a consent judgment. We agree.

This Court has held that generally consent judgments are not reviewable on appeal because the consent of the parties waives prior irregularities and constitutes a release of errors. Echols v. Star Loan Co., 290 Ala. 76, 274 So.2d 51 (1973); City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160 (1953); ...