Mitchell v. Hardie

• Decision Date: 17 May 1888
• Citation: 84 Ala. 349,4 So. 182
• Parties: MITCHELL ET AL. v. HARDIE.
• Court: Alabama Supreme Court

4 So. 182

84 Ala. 349

MITCHELL ET AL. v. HARDIE.

Supreme Court of Alabama

May 17, 1888

Appeal from chancery court, Russell county; JOHN A. FOSTER, Judge.

Bill in equity to reform a former decree. Judgment for complainant. Defendants appeal.

Brickell, Semple & Gunter, for appellants.

G P. Harrison, Jr., and A. Barnes, for appellee.

CLOPTON J.

Notice of the application to file the bill of review was not given to the adverse parties. It is insisted that without such notice the chancellor had no right to allow the bill to be filed. It may be conceded that the proceeding was irregular and subjected the bill to a demurrer, or to a motion to be ordered to be taken off the file. The irregularity was not assigned as cause of demurrer, and no motion was made to have the bill taken from the file. The defendants, having answered, and the case having proceeded to a final decree without objection, will be regarded as having waived the irregularity, and cannot make it available on appeal.

Section 3497 of the Code of 1886 provides: "Application to file bills of review must be made within three years after the rendition of the decree, except in case of infants, or married women unless the matter of the decree relates to their separate estates, and persons of unsound mind, who may apply within three years after the termination of their respective disabilities." The statute does not require that the bill of review itself shall be filed, but that application to file it must be made within the statutory period. The application was made to file the bill within three years after the termination of the disability of complainant, and was in time.

Notwithstanding the guardian ad litem of an infant defendant may admit the allegations of a bill, or consent to a decree, the complainant is still bound to prove, by independent evidence every material fact essential to relief; and, if it appears from the decree that it is rendered only on the admissions or by the consent of the guardian ad litem, it constitutes error apparent, which will support a bill of review. On the former appeal, we held that if a decree is rendered, on a bill to sell real estate to pay the debts of a decedent, only by consent of the guardian ad litem, or on his admissions of the facts of debts against the estate, and the insufficiency of the personal assets to pay them, this was error apparent, for which the decree should be reversed back to the pleadings, that there may be a further and fuller trial on legal and independent testimony. Hooper v. Hardie, 80 Ala. 114. The correctness of the rule is conceded; but it is insisted that, it appearing from the proceedings and decrees in the former suit that the first submission was upon the pleadings, testimony, and written agreement of the respective parties, the subsequent submissions, of necessity, were upon the evidence thus already before the chancellor, and that the presumption must be indulged that the chancellor considered the evidence sufficient to support the decree; and that the rule applies that in such case no inquiry can be made, on a bill of review, whether there is evidence to support the decree, or whether the decree is contrary to the evidence. There would be much force in the position of counsel if the record did not disprove the contention. The first submission was made in term-time, November 19, 1867, when a...