Kirkland v. Mills

• Decision Date: 30 June 1903
• Citation: 35 So. 40,138 Ala. 192
• Parties: KIRKLAND ET AL. v. MILLS.
• Court: Alabama Supreme Court

35 So. 40

138 Ala. 192

KIRKLAND ET AL. v. MILLS.

Supreme Court of Alabama

June 30, 1903

Appeal from Chancery Court, Henry County; W. L. Parks, Chancellor.

Suit by W. H. Mills against D. L. Kirkland and others. From a decree defendants appeal. Affirmed.

On the submission of the cause for final decree on the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for, and ordered the register to hold a reference to ascertain and report the amount due on the mortgages involved in the suit, and what was a reasonable attorney's fee for foreclosing the said mortgage. This decree was rendered on February 12, 1901. On March 26, 1901 there was a decree rendered which recited as follows "This cause, coming on again to be heard at this term of the court, is submitted for decree on the report of the register, which was read on a former day of this term, and ordered to lie over under the rules, and on consideration thereof, no exceptions being filed by either party, it is ordered, adjudged, and decreed that the report be, and the same is, in all things hereby confirmed.

P. A McDaniel, for appellants.

W. W. Sanders, for appellee.

DOWDELL J.

The appeal in this case was sued out on the 26th day of March, 1902, and is taken from a decree rendered on the 26th day of March, 1901. The decree from which the appeal was taken is one confirming the report of the register, and directing the distribution of the fund under said report, and in accordance with a former decree of the court. No exceptions were reserved to the report, and after the same had been duly made, and had lain over under the rules, the decree of confirmation followed. The decree under which the reference was held and report made was rendered on the 12th day of February, 1901, more than 12 months before the suing out of the appeal. This decree of February, 1901, was in every essential a final decree, and from which an appeal was authorized under the statute at any time within 12 months. By it all of the equities of the case were fully settled and determined, and what remained to be done was ministerial in character, and for the purpose of carrying out what had already been decided. Garry v. Jenkins, 109 Ala. 471, 20 So. 8; 3 Brick. Dig. 34, § 12.

The time for taking an appeal from the decree of February 12 1901, having elapsed before the time of suing out the present appeal, the rendition of that...