Kimbrell v. Rodgers

• Decision Date: 27 January 1890
• Citation: 7 So. 241,90 Ala. 339
• Parties: KIMBRELL ET AL. v. RODGERS.
• Court: Alabama Supreme Court

7 So. 241

90 Ala. 339

KIMBRELL ET AL. v. RODGERS.

Supreme Court of Alabama

January 27, 1890

Appeal from chancery court, Marengo county; THOMAS W. COLEMAN Judge.

Bill by William D. Rodgers against Roland Kimbrell, Sallie Kimbrell his wife, Edward B. Rentz, Richard E. Rentz, and Alice E McGee, formerly Alice E. Rentz, praying the foreclosure of a mortgage which had been given to him by the defendants Roland and Sallie Kimbrell to secure certain notes which were signed by both of them. There was a demurrer by the respondents on the ground that there was a misjoinder of parties, in that Sallie Kimbrell was not a proper and necessary party defendant to the bill, and on the ground of non-joinder of parties, in that Alice E. McGehee, formerly Alice E. Rentz is a married woman, and her husband is a necessary party defendant. Upon the hearing of these demurrers the chancellor overruled each one of them.

Eugene McCaa, for appellants.

Tayloe & Johnston, for appellee.

MCCLELLAN J.

The decree appealed from was rendered on the 28th day of March, 1888. The respondents below prayed the appeal, and executed security for the costs thereof, on the 28th day of March, 1889. The undertaking to secure costs was approved by, and filed in the office of, the register on that day. The citation of appeal was not issued, however, until the following day, March 29, 1889, and not served until April 2, 1889.

Upon this state of facts it is insisted that the appeal was not taken within a year from the rendition of the decree, is consequently barred by the statute, and that appellee's motion to strike out the assignment of errors should be granted. We cannot concur in this view. An appeal is "taken," within the meaning of our statute, when the party desiring to prosecute it has complied with the conditions upon which the law gives the right. The only condition precedent in this case was the filing with the register, within one year from the rendition of the decree, a sufficient undertaking to secure costs. This was done, and the right fully perfected, within the time limited. Whatever else remained to be done in effectuating a review of the case by this court depended upon the discharge of duty by a public officer, and not upon any act of the appellants. The appeal having been taken on March 28th, it became the register's duty to cite appellee to its defense in this court, and make out and file here a transcript in the cause. The citation is no part of, nor does it constitute any step in, taking the appeal. Section 3631 of the Code demonstrates that it issues only after the appeal has been taken, and accomplishes its office if it carries notice of the appeal to the appellee 10 days or more before the day on which the appeal is returnable. The duty of the officer is fully performed if the citation is issued in time to accomplish this purpose, as was done in this case. Moore v. Spier, 80 Ala. 129.

The decree from which the appeal is prosecuted was the final decree in the cause. That of January 18, 1888, was interlocutory. It adjudged that complainant was entitled to relief; that he had a lien on the land for the payment of any sum still due on the note and mortgage; and that for the satisfaction of such balance he was entitled to have the land sold. Whether there was anything due on the mortgage was a disputed question in the case. The indebtedness claimed was denied by the answer of R. Kimbrell. The issue thus presented involved one of the equities upon which complainant's right to relief depended. This issue of indebtedness vel non was not determined by the decree of January 18th, but was by that decree referred to the register; and the essence of the relief prayed-the sale of the land for the satisfaction of the mortgage-could not be, and was not, granted until after the coming in of the register's report ascertaining indebtedness under the mortgage, the confirmation thereof, and the decree of sale of March 28, 1888. Garner v. Prewitt, 32 Ala. 13. The January decree was therefore interlocutory. It did not settle all the equities between the parties, nor fully adjudge the relief for which complainant prayed. That of March was final; and the appeal brings it, and all previously-rendered interlocutory decrees, up for review. Walker v. Crawford, 70 Ala. 567.

There was no error in the decree overruling demurrers for non-joinder and mis-joinder of parties. Under the act of February 28, 1887, which was of force when the bill in this case was filed, the husband is not a necessary party defendant to a bill filed against a married woman, and seeking to subject or charge her separate estate. Marshall v. Marshall, 86 Ala. 383, 5 South. Rep. 475.

The theory of the bill is that the lands embraced in the mortgage belonged to Roland Kimbrell. The conveyance having been executed by his wife in the manner prescribed by the statute for the relinquishment of her inchoate right of dower, she was a proper party defendant to the suit to foreclose the mortgage, and cut off that right by a sale of the fee. Sims v. Bank, 73 Ala. 248; McGehee v. Lehman, 65 Ala. 320.

The mortgage in terms conveys "the following-described tract or parcel of land, to-wit, the property known as 'Kimbrell's Grist and Saw Mill and Gin,' together with all the privileges and appurtenances belonging thereto lying in Marengo county," etc. It was in evidence that two acres of land, upon which the mill and gin were situated, had always been used in connection therewith, and were necessary to the enjoyment thereof. This land, we think, is embraced in the descriptive words of the conveyance, as "the tract or parcel of land known as the 'Kimbrell Grist and Saw Mill and Gin Property."' But were this otherwise, the land manifestly is appurtenant to the mill and gin, and essential to their reasonable use; and while, ordinarily, land cannot be said to pass as appurtenant to land if the land expressly...