Jordan v. Hardie

• Decision Date: 29 June 1901
• Citation: 31 So. 504,131 Ala. 72
• Parties: JORDAN v. HARDIE ET AL. [1]
• Court: Alabama Supreme Court

31 So. 504

131 Ala. 72

JORDAN v. HARDIE ET AL. ^[1]

Supreme Court of Alabama

June 29, 1901

Appeal from chancery court, Macon county; S. K. McSpadden Chancellor.

Bill of review by Eddie Jordan against Bradford Hardie and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Gunter & Gunter and C. P. McIntyre, for appellant.

Horace Stringfellow, for appellees.

DOWDELL J.

The complainant, Eddie Jordan, appellant here, filed his bill for the purpose of reviewing and reversing the decree complained of, for error of law apparent. From a decree of the chancellor sustaining a demurrer to his bill, and dismissing the same for want of equity, this appeal is prosecuted.

To determine what constitutes error of law apparent on the face of the decree is not always free from difficulty. But as was said by this court, speaking through Brickell, C.J., in McCall v. McCurdy, 69 Ala. 71, to support a bill of review for error of law apparent, "there must be error in substance, of prejudice to the party complaining, apparent on the face of the pleadings, proceedings, or decree. * * * Comparing the decree with the pleadings and other proceedings, it must be apparent that the court has reached and declared an erroneous conclusion of law as to the rights of the parties. Whatever of error other than this, which may have intervened,--errors in the regularity of the proceedings, erroneous deductions from the evidence,--must be corrected by writ of error or by appeal. It is not the office of a bill of review to inquire into and correct them." In the proceedings sought to be reviewed, the bill as amended--the foundation of the decree--was filed by N.M Jordan as an individual, and in her representative capacity as surviving executrix under the last will of E. W. Jordan, her deceased husband. The will is made an exhibit to the bill, and by it all of the property of the testator was charged with the payment of the indebtedness of testator to James W. Hardie and James W. Hardie & Co., and directed that the same be paid off "before the payment of any legacy whatever." The will contained a power of sale as follows: "My executor and my executrix are hereby empowered to sell my property, real or personal, belonging to my estate, without first having obtained an order of court therefor, either at public or private sale, whenever, in their opinion, it is necessary to promote the interest of my estate, and may purchase other property with the funds arising from such sale, and such other property, when purchased, shall be subject to the same directions of this will herein expressed of property now owned by me." The bill avers the death of J. W. Hardie, complainant's coexecutor under the will. The bill also itemized all of the personal property belonging to the estate of E. W. Jordan, and avers its value, and specifies what personal property had been sold by the executor and executrix, showing that the proceeds of such sale had been applied in payment and discharge of certain named debts of the testator, and it then avers what debts remained unsatisfied. It likewise showed in what the real property of the estate consisted, and after thus itemizing the property of the estate, both personal and real, and specifying the debts and the amounts thereof remaining unpaid, averred that the estate was insolvent. The complainant executrix, widow of the deceased, among other things, sought to have her exemptions out of the personal property on hand set aside to her as well as a homestead in the land, and, after setting apart a homestead, had prayed for a sale of the lands for the payment of debts of the estate. The bill also averred that complainant was advised that she, as surviving executrix, could not make a valid sale of the property under the power given in the will. The heirs at law and the personal representatives of James W. Hardie were defendants in the bill. The complainant in the present bill, who was then a minor, was also made a respondent, and was represented by a guardian ad litem. An swers were filed and issues made and testimony taken, and the cause submitted for decree on the pleadings and proof, and a decree rendered, and this decree is here sought to be reviewed and reversed for error of law apparent.

The first assignment of error in the rendition of the decree insisted on in argument questions the jurisdiction of the court rendering the decree. We think there can be no doubt but that under the averments of the bill, whether it be considered as one for the settlement of the administration of a coexecutor, or as one for the sale of real estate for the payment of debts, a court of chancery had jurisdiction. On the first proposition stated,...