Pate v. Hinson

• Decision Date: 27 November 1894
• Citation: 16 So. 527,104 Ala. 599
• Parties: PATE, SHERIFF, ET AL. v. HINSON.
• Court: Alabama Supreme Court

16 So. 527

104 Ala. 599

PATE, SHERIFF, ET AL. v. HINSON.

Supreme Court of Alabama

November 27, 1894

Appeal from chancery court, Geneva county; Jere N. Williams Chancellor.

Bill by Joseph E. Hinson against M. E. Milligan and B. F. Pate, as sheriff of Geneva county, for the cancellation of a deed executed by the defendant B. F. Pate, as sheriff, to M. E Milligan, who purchased at an execution sale, and to restrain the execution of a writ of possession. From orders overruling a demurrer, and denying motions to dismiss the bill and dissolve a temporary injunction, defendants appeal. Reversed.

M. E Milligan, for appellants.

W. O Mulkey, for appellee.

BRICKELL C.J.

The original bill filed by the appellee, in substance, states: That in 1892 the National Fertilizer Company recovered a judgment at law against the appellee for a sum exceeding $900, on which an execution issued, and was levied on certain described lands, of which there was a subsequent sale by the sheriff. At the sale the appellant Milligan, the attorney of the plaintiff in the judgment, was the only bidder, and became the purchaser of the lands at and for the sum of $200, the lands being of the value of at least $3,000, and to him the sheriff, the appellant Pate, made a deed of conveyance. The title to the lands was so embarrassed by litigation that the appellee could secure no loan, and he had no money with which to purchase or to pay off the judgment. In the spring of 1894, Milligan obtained judgment against the appellee for the possession of the lands; the court, in pursuance of an agreement of the parties, ordering that a writ of possession should not issue if, within 120 days, the complainant paid Milligan the sum he bid for said lands, with 10 per cent. interest thereon. That the appellee endeavored to raise the money to make the payment, but was not able to do so. A copy of a motion the appellee made in the circuit court to vacate the sale is made an exhibit to the bill. A writ of possession had issued on the judgment obtained by Milligan, and was in the hands of the appellant Pate, as sheriff. Milligan and Pate are made parties defendant. The prayer for relief is that the deed of the sheriff to Milligan be annulled as a cloud upon the title of the appellee, the execution of the writ of possession enjoined, and for general relief. A temporary injunction was granted. The defendants appeared, and moved a dismissal of the bill for want of equity, and a dissolution of the injunction. The defendant Milligan demurred, assigning four causes: (1) That Pate was not a proper party. (2) That "there is no equity in the bill." (3) That it is shown the circuit court had made an order requiring the complainant to pay the defendants $200, or the judgment in ejectment should be final, and it was shown affirmatively the payment had not been made. (4) The bill shows the court was without jurisdiction, the concurrent jurisdiction of the circuit court having been invoked and exercised. The chancellor, in term, overruled the motions and the demurrers, and from the decree overruling them the appeal is taken.

The first cause of demurrer assigned was properly overruled. It may be that Pate, the sheriff, is not a proper party defendant. As a general rule, a sheriff is not a necessary or property party to suits in equity drawing in litigation his official acts under process issuing from courts of law. Shrader v. Walker, 8 Ala. 244; Collier v. Falk, 61 Ala. 105. But, if he is not a proper defendant, the objection is available to him only. One defendant cannot object that another defendant has no interest in the subject-matter of the suit, and is improperly made a party. 1 Brick. Dig. p. 753, § 1689; 3 Brick. Dig. p. 373, § 94.

The second cause of demurrer is illy assigned. It is, at best, a mere general demurrer, which the statute declares shall not be heard. Code, § 3443; 3 Brick. Dig. p. 389, § 365.

The third and fourth causes of demurrer are involved in a consideration of the motion to dismiss the bill for want of equity. A motion to dismiss a bill for want of equity, like the general demurrer which once prevailed in our practice directs attention wholly and exclusively to the equities of the bill, not to its frame, or the want or misjoinder of parties, or other matter which, if a demurrer were interposed, would be regarded as waived if not specially assigned. It can prevail only when, admitting all the facts apparent on the face of the bill, whether well or illy pleaded, the complainant can have no relief whatever. If it is apparent, upon a proper...