McDonald v. Womack

• Decision Date: 25 March 1926
• Docket Number: 7 Div. 638
• Citation: 214 Ala. 309,107 So. 812
• Parties: McDONALD v. WOMACK.
• Court: Alabama Supreme Court

107 So. 812

214 Ala. 309

McDONALD v. WOMACK.

7 Div. 638

Supreme Court of Alabama

March 25, 1926

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Motion of R.J. Womack to set aside a sale of real estate under execution to W.E. McDonald. From an order or judgment sustaining the motion, the purchaser appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

E.O McCord & Son, of Gadsden, for appellant.

Victor Vance, of Gadsden, for appellee.

BOULDIN J.

The appeal is from an order or judgment granting a motion to set aside and vacate a sale of real estate under execution.

Much of the record deals with questions going to abuse of process in making the sale and gross inadequacy of price, resulting probably from a controversy growing out of irregularities in the proceedings. We have reached the conclusion that these questions need not be here determined, because of a more vital question touching validity of the judgment on which the execution was issued.

J.C King recovered judgment against T.J. Evans in January, 1922 for debt and costs. An appeal was duly taken to the Court of Appeals. R.J. Womack, appellee, was surety on the supersedeas bond. In December, 1922, the plaintiff, appellee in that case, died. In January, 1923, without suggestion of his death to the Court of Appeals, or revivor, it appears the cause was submitted on motion to affirm for want of assignment of errors. The motion was granted and judgment affirmed. No personal representative of appellee's estate had been appointed at that time. In March, 1923, an executrix was appointed, and execution issued in 1925 in her name was levied upon the lands of the surety on the supersedeas bond, resulting in the sale which was set aside.

In Alabama the rule has been settled from early times that a judgment in favor of or against a dead man is void, and not merely voidable. This rule seems to be out of harmony with that prevailing in many states, but has been steadfastly reaffirmed here. Ex parte Massie, 31 So. 483, 131 Ala. 62, 56 L.R.A. 671, 90 Am.St.Rep. 20; Powe v. McLeod, 76 Ala. 418; Chapman v. Chapman, 70 So. 121, 194 Ala. 518; Meyer v. Hearst, 75 Ala. 390; Ex parte Swan, 23 Ala. 192; Moore v. Easley, 18 Ala. 619; Swink v. Snodgrass, 17 Ala. 653, 52 Am.Dec. 190; Stewart v. Nuckols, 15 Ala. 225, 50 Am.Dec. 127; Hood v. Mobile Bank, 9 Ala. 335; 33 C.J. p. 1107, § 62, note 66.

In the application of this rule to judgments of affirmance in this court, the judgment dates from the submission of the cause. Powe v. McLeod, 76 Ala. 418.

Assuming that a like rule obtains in the Court of Appeals, it appears in this record no submission was had during the life of appellee. His death revoked all agency of his attorneys to appear for him and make the motion to affirm in his name. It is true that such disposition of the cause in the Court of Appeals, not thereafter vacated, left the judgment of the court below intact against the defendant. Code, § 6092. But a judgment against the sureties on the supersedeas bond is an original judgment in the appellate court, a statutory judgment apart from the general appellate power of this court. Code, § 6153.

The execution on such judgment is issued by the clerk of the lower court, upon certificate of the judgment of the appellate court. Anniston L. & T. Co. v. Stickney, 31 So....