Louisville & N.R. Co. v. Mauter
| Decision Date | 19 June 1919 |
| Docket Number | 6 Div. 922 |
| Parties | LOUISVILLE & N.R. CO. v. MAUTER. |
| Court | Alabama Supreme Court |
Original application for leave to file bill of review by the Louisville & Nashville Railroad Company, opposed by Theobald Mauter. Denied.
See also, 74 So. 932.
Eyster & Eyster, of Albany, and A.A. Griffith, of Cullman, for appellant.
Emil Ahlrichs, of Cullman, for appellee.
By its original petition in this cause, filed in this court April 23, 1919, petitioner Louisville & Nashville Railroad Company asks leave to file in the circuit court of Cullman, sitting in equity, its bill in the nature of a bill of review. The decree brought into question was rendered by the circuit court of Cullman, sitting in equity, on January 2, 1918, and was affirmed by this court November, 1918. By that decree the Louisville & Nashville Railroad Company was commanded to abate an obstruction which it had caused in First street in the town of Cullman by lowering the grade of its roadbed at the point of its intersection with First street.
The decree of the circuit court, having been affirmed on appeal was merged in the decree of affirmance, and the permission of this court is necessary to the filing of a bill of review. Stallworth v. Blum, 50 Ala. 46; 16 Cyc. 519. The application discloses the fact that petitioner's proposed bill of review is founded upon the fact that on January 2 1919, petitioner, proceeding, as it avers, under sections 6031 and 6032 of the Code, revoked its previous dedication--alleged in a way--of so much of First street as lay across its right of way, to which revocation and its consequent vacation of the street at that point the mayor and council of the town of Cullman, on March 19, 1919, did assent by resolution duly adopted.
While it is commonly said that a bill of review to review a decree may be filed because of error of law apparent upon the face of the record or because of newly discovered evidence pressing upon the matter in issue in the former suit ( McCall v. McCurdy, 69 Ala. 65), it seems to be established doctrine that, if new matter has arisen since the decree, it may be brought forward by way of bill of review. Cochran v. Rison, 20 Ala. 463; Dexter v. Arnold 5 Mason, 303, Fed.Cas. No. 3,856. The bill here is in effect a supplemental bill in the nature of a bill of review, its purpose being to suspend or avoid the operation of the decree of January 2, 1918. 10 R.C.L. § 357, pp. 568, 569; Story, Eq.Pl. (10th Ed.) §§ 388, 428a.
The new matter upon which petitioner's proposed bill relies is that since the decree in the former cause the dedication of so much of First street as lies across the petitioner's right of way has been vacated by a proceeding had under and in accordance with sections 6031 and 6032 of the Code. Sections 6028, 6029, and 6030, to state them according to their general effect, provide that any person, desiring to subdivide his lands into lots, may cause a plat or map to be made, which plat or map, having been signed, acknowledged, and recorded, operates as a conveyance in fee simple of such portions of the land as are marked or noted on such plat or map as donated or granted to the public. Sections 6031 and 6032 provide for the vacation of any such plat or map by the execution and recordation of an instrument declaring the same to be vacated, and if any street or alley, shown by the plat or map, is within the limits of any municipality, "the assent of the mayor and alderman, or other governing body of the municipality, must be procured." We have said that petitioner alleges its revocation in accordance with the statute of so much of First street as lay across its right of way, alleging in a way its previous dedication of that part of the street. The petition is sworn to, as it should have been, and respondent Mauter has filed counter affidavits. In Dexter v. Arnold, supra, Judge Story said:
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