Mutual Service Funeral Homes v. Fehler

• Decision Date: 24 April 1952
• Docket Number: 6 Div. 275
• Citation: 257 Ala. 354,58 So.2d 770
• Parties: MUTUAL SERVICE FUNERAL HOMES v. FEHLER et al.
• Court: Alabama Supreme Court

Page 770

58 So.2d 770

257 Ala. 354

MUTUAL SERVICE FUNERAL HOMES v. FEHLER et al.

6 Div. 275.

Supreme Court of Alabama.

April 24, 1952.

Rehearing Denied May 15, 1952.

Robt. Hutson and Russell W. Lynne, Decatur, for appellant.

Finis E. St. John, Cullman, for appellees.

FOSTER, Justice.

This is the second appeal in this case. The first was from a ruling on demurrer to the bill, and is reported in 254 Ala. 363, 48 So.2d 26.

The purpose of the bill is to enjoin the anticipated use of certain described property for a funeral home, upon the allegation that, if so used, it will create a nuisance in a wholly residential section of the city of Cullman. On former appeal it was held that the bill had sufficient allegations to show that a nuisance would be created. An answer was filed, and the case was tried on the issue made and a final decree rendered permanently enjoining appellant from operating a funeral home at the designated place. The present appeal is from that decree.

Assignments of Error 8 and 9.

The decree contained the statement that the cause was submitted upon an oral hearing of the evidence before the court, and that in addition to such evidence the court visited and observed the area in question. This means of course that the presiding judge viewed the area. There is nothing in the record to indicate that he gave notice of his intention to observe the area and that the parties and their counsel were notified or present.

Appellant is complaining on this appeal of that action of the trial judge in visiting the area and observing it without any notice to appellant or his counsel and without an opportunity of being present.

We have a number of cases in this State upon that subject. It is fully recognized by all the authorities that it is discretionary with the trial judge, who is sitting as a trier of the facts, to visit the scene of the locus in quo, if to do so would shed any light upon the controversy. In our case of Adalex Construction Co. v. Atkins, 214 Ala. 53, 106 So. 338, that question was considered. The decree in that case recited that the court, meaning the judge of course, without notice to or consent of the parties, examined the premises and buildings and inspected the area. It was insisted that in doing so there was error. This Court, in considering such contention, noted that it was within the power and discretion of the trial judge to do so: stating that it would assume that in making such inspection, in the absence of and without notice to the parties, the judge observed all the safeguards he would throw about a jury in making such inspection. But that it was the wise policy of the law to do so in the presence of the parties or with an opportunity for them to be present, and commended that practice as a rule of judicial propriety. In our cases it has not been required that the parties be notified or be present. But in most of them that policy was pursued. In some of the cases it does not seem to have been pursued, but the decree was not reversed because of such failure. Faught v. Leith, 201 Ala. 452, 78 So. 830; Jenkins v. Steel Cities Chemical Co., 208 Ala. 643, 95 So. 22; Watt v. Lee, 238 Ala. 451 (20-21), 191 So. 628; Fuller v. Blackwell, 246 Ala. 476, 21 So.2d 617; Monroe Bond & Mortgage Co. v. State ex rel. Hybart, 254 Ala. 278, 48 So.2d 431. We find no reversible error as here claimed.

Assignment of Error 11.

Under this assignment of error it is pointed out by appellant that the record shows from the evidence introduced that two of the complainants named in the suit died subsequent to its institution and before the rendition of the decree, and no account had been taken of that, except it is shown by the testimony reported by the court reporter, in that, there was no revivor with reference to either of them and their death was not suggested or noted upon the record except in the testimony. That the final decree was in their favor as well as in favor of the other complainants and, therefore, the decree is void.

Section 153, Title 7, Code, among other things, provides that upon the death of a party it may be so suggested upon the record and the action proceed in the name of or against the survivor. This statute has no application however to suits in equity. Fearn v. Ward, 80 Ala. 555, 2 So. 114.

Rule 35 of Equity Practice, Code 1940, Tit. 7 Appendix, embraces the various statutes and rules theretofore existing having application to the subject of revivor in equity. There is no provision there shown designating the course to be pursued when only one of the complainants dies. So that, we are remitted in that situation to the general rules pertaining to the subject. In analyzing that question, it is necessary to take into consideration the nature of the equity claim and the respective interests of the complainants in it. In doing so, we note that this is a suit to enjoin a prospective nuisance by various property owners similarly situated, although not precisely so. Under such circumstances, several persons injured by a nuisance common to all may unite in seeking equitable relief and different property owners may join as complainants in such a bill. 46 Corpus Juris, 780; 66 C.J.S., Nuisances, § 124. On principles which apply to this situation, but applicable directly to creditors' suits, it has been held that such a suit does not abate on the death of one of the creditor complainants if one or more of them remains and prosecutes the suit to a final decree. 1 C.J.S., Abatement and Revival, § 121, page 170, note 31.

Appellant contends that regardless of that principle, a decree cannot be rendered in favor of a person who is dead at the time of its rendition, and that the two complainants being dead at the time of the rendition of the decree it was void because it was for their benefit jointly with the other complainants remaining as such. Of course the principle is well understood that a judgment in favor of or against a dead man is void absolutely. Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116.

The question here is whether or not that principle applies where one or more of the complainants dies leaving other complainants, who have a right independently and without the dead complainants, to enforce the equitable right claimed. In the case of Ex parte Massie, 131 Ala. 62, 31 So. 483, 56 L.R.A. 671, this Court held that in an equity suit, where one of the material defendants in the case died before the rendition of the decree, the decree purporting to be against them both was void and should have been set aside on motion.

In the case of Chapman v. Chapman, 194 Ala. 518, 70 So. 121, there were two complainants seeking specific performance of a contract against a single respondent. Both complainants died before the submission of the cause. It was revived in the name of a person individually as an heir and as administrator of one of the deceased complainants. Nothing was done towards a revivor of the other complainant. There was a decree then rendered granting relief to the complainants. The Court held that the revivor was applicable to one complainant, wherein it was sought, but not with respect to the other complainant, and that heirs at law were necessary complainants. The Court did not hold that the decree was void, but because of imperfections with respect to the revivor, it was reversed to the end that the necessary parties complainant could be brought into court.

In this connection, we refer to Rule 67 of Equity Practice which authorizes a court of equity to render a decree in favor of one or more complainants without it being in favor of all complainants. This was a change of the rule existing before the adoption of the statute which was here made a rule. While section 153, Title 7, supra, may have direct application only to a court of law in this respect, it was a statement of a common law rule as pointed out in the case of Stoer v. Ocklawaha River Farms Co., 223 Ala. 690, 138 So. 270; Long v. Kansas City, Memphis and Birmingham R. R. Co., 170 Ala. 635, 54 So. 62.

While a decree in equity as well as a judgment at law must be in favor of a living person, we are inclined to the view that, particularly in a court of equity in accordance with the principles above declared, where one or more of the complainants dies pending the suit and the rights of the other complainants are independent of those of the deceased, a decree favorable to the complainants, without having the record to note the suggestion of the death of those who died, will be referred to those who are living at the time of the decree as the complainants in it, and not as being in favor of those also who may have died and without a successor appointed and without even a suggestion made in the record of their death.

In the instant case the decree is that the complainants are entitled to the relief prayed. It is then ordered, adjudged and decreed that the respondent be restrained and enjoined as there indicated without further referring in the decree to the complainants or any of them.

We think it would be highly technical to reverse a decree for that reason if the remaining complainants are entitled to the...