Mitchell v. Austin
| Decision Date | 21 February 1957 |
| Docket Number | 1 Div. 672 |
| Citation | 266 Ala. 128,94 So.2d 391 |
| Parties | Joseph MITCHELL v. William G. AUSTIN, Jr., as Trustee, et al. |
| Court | Alabama Supreme Court |
D. R. Coley, Jr., Mobile, for appellant.
Frank J. Tipler, Jr., Andalusia, for appellees.
Before proceeding to a consideration of the case on the merits, a construction of Supreme Court Rule 37, Code 1940, Tit. 7 Appendix, is necessary to determine whether the transcrpit should be permitted to be filed. The case is in equity. The appellant, pursuant to Supreme Court Rule 37, applied to the lower court for a thirty-day extension of time within which to file the transcript in this court. The trial court granted the extension which would run until June 20, 1956. On June 27th, seven days after the limit of the extension, the appellant filed to record here along with a petition that he be allowed to so file it. The appellee consented to the belated filing.
The question posed is whether or not the appellant must apply to this court before the time expires for the filing of the transcript or can he wait, as he did here, until his filing time has passed and then request this court for an extension of time.
This situation seems not to be covered by Rule 37, but the court, in general consultation in which all the Justices have concurred, has concluded that the application for the filing of the transcript here need not be made within the time (90 days) allowed in the lower court, but that on good cause shown this court may extend the time for filing the transcript either before or after the said 90 day period allowable in the court below.
In this case it is the view of the court that the consent of opposing counsel to the belated filing of the transcript is sufficient showing of good cause.
The appeal is from a decree of the circuit court in equity holding good a plea of res judicata against the bill and bill as amended, and dismissing the bill.
The bill and bill as amended sought the establishment of an alleged lost deed wherein the grantee therein executed a mortgage to the complainant, Mitchell, on the real estate embraced in the deed, the foreclosure of said mortgage, and other relief.
The strict question of merit presented is whether a former proceeding and decree rendered thereon in the same court (reported in Turner v. Steber, 259 Ala. 509, 66 So.2d 781, and here affirmed) barred the present suit. The trial court on setting the plea down for a hearing on its sufficiency held to the affirmative, dismissed the bill, and complainant brings this appeal.
The material facts giving rise to the action appear to be as follows: In April, 1944, W. R. Steber (now deceased) and wife, Anna K., allegedly conveyed certain real property to T. W. Cobb; the conveyance was not recorded. Cobb, on May 1, 1944, executed a mortgage on such property to the complainant, Mitchell; the mortgage was not recorded. Cobb, on May 26, 1944, conveyed the real property by warranty deed to one Turner which conveyance was recorded. Thereafter, in 1950, Cobb's whereabouts being unknown, Turner sought to establish the alleged lost deed from Steber and wife to Cobb. This court, sustaining the decree of the trial court, there held that the evidence failed to show any intent to execute and deliver a deed which would convey title from Steber to Cobb. Turner v. Steber, supra.
The question then is whether Mitchell, the complainant here, is barred from the present suit by the former Turner v. Steber case, supra, when he was not a party to that proceeding, and his mortgage was executed prior to the institution of said suit.
It is well settled that a final decree is conclusive as to all facts or issues decided therein and binds not only those who were parties to the litigation but also persons who are in privity with them. Sims v. City of Birmingham, 254 Ala. 598, 49 So.2d 302.
But the term 'privity' 'denotes mutual or successive relationship to the same right of property.' Bigelow v. Old Dominion Copper Mining & Smelting Co. 225 U.S. 111, 32 S.Ct. 641, 643, 56 L.Ed. 1009. And no one is in privy to a judgment whose succession to the rights of property thereby affected, occurred previously to the institution of the suit. Freeman On Judgments (5th Ed.), § 440, p. 966.
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Johnson v. Champions
...res judicata analysis, the term “privity denotes mutual or successive relationship to the same right of property.” Mitchell v. Austin, 266 Ala. 128, 94 So.2d 391, 392 (1957) (citation and internal quotation marks omitted); see also Bradberry v. Carrier Corp., 86 So.3d 973, 986 (Ala.2011) (“......
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Johnson v. Champions
...In a res judicata analysis, the term "privity denotes mutual or successive relationship to the same right of property." Mitchell v. Austin, 94 So.2d 391, 392 (Ala. 1957) (citation and internal quotation marks omitted); see also Bradberry v. Carrier Corp., 86 So.3d 973, 986 (Ala. 2011) ("A p......
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Irvin v. Griffin Corp.
...to litigate the issue in the prior proceeding." Owen v. Miller, 414 So.2d 889, 891 (Ala.1981); see also Mitchell v. Austin, 266 Ala. 128, 94 So.2d 391, 392-93 (1957) (person with mutual or successive interest in the same property may be bound by a prior adjudication concerning that property......
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Sherrod v. Webber (Ex parte Webber)
...Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). This Court held in Mitchell v. Austin, 266 Ala. 128, 94 So.2d 391 (1957), that persons with mutual or successive interests in the same property may be bound by the results of a prior adjudication.......