Pfingstl v. Solomon, 3 Div. 310.

• Decision Date: 06 June 1940
• Docket Number: 3 Div. 310.
• Citation: 240 Ala. 58,197 So. 12
• Parties: PFINGSTL v. SOLOMON ET AL.
• Court: Alabama Supreme Court

197 So. 12

240 Ala. 58

PFINGSTL v. SOLOMON ET AL.

3 Div. 310.

Supreme Court of Alabama

June 6, 1940

Rehearing Denied June 27, 1940.

Appeal from Circuit Court, in Equity, Montgomery County; Walter B Jones, Judge.

Proceeding by H. D. Solomon and others, as executors of the will of I Fred Solomon, deceased, against Holmes Pfingstl for the sale of property, wherein Holmes Pfingstl filed a cross-bill to enforce his asserted right to or interest in the property under an agreement with testator. From a decree of sale Holmes Pfingstl appeals.

Affirmed.

Wm. J. Fuller, Jr., of Montgomery, for appellant.

Bernard Lobman and Hill, Hill, Whiting & Rives, all of Montgomery, for appellees.

FOSTER Justice.

This is a proceeding to settle a controversy between the parties growing out of an agreement made between I. Fred Solomon and appellant in 1937 relating to a nursery known as "Wisdom Wood Nursery." Solomon died in 1939, letters testamentary issued, and on August 24, 1939, the estate was removed into the circuit court, in equity. On November 22, 1939, a petition was filed by the executors in that court alleging that the plants were perishable and required constant care and attention, and were liable to waste and deterioration, and that a sale would be beneficial to the estate and to the owners of the plants. It did not set out what was the agreement with appellant, did not seek the settlement of a partnership or joint adventure, but prayed that notice be given to the widow and to appellant, and sought a sale of the nursery stock.

Appellant appeared, and demurred to the petition, but there was no ruling on it and he then made answer. He set up an oral agreement between him and Solomon made in September, 1937, whereby they were to enter into the business of raising plants and shrubs for retail sale, including greenhouse and general nursery business, and that each was to have an undivided one-half interest in the business and its profits: that in event of a dissolution each was to have one-half of the stock and equipment then on hand, which he alleges was worth $4,500, when the answer was filed, something more than two years after the arrangement was made. He claimed to be entitled as surviving partner to the possession, control and disposition of the property, after Solomon died, and that he attempted to exercise this right when he was prevented by the widow and executors. He alleged that the plants were not perishable, and needed at that time (December, 1939) very little attention, and that it would not be beneficial to sell them in bulk.

On evidence taken orally before the judge, the court found and decreed on December 7, 1939, that the agreement was that Solomon was to furnish all capital necessary, as well as the land; that appellant was to plant all the shrubs and plants, and superintend their care and maintenance; and that after Solomon had been fully reimbursed for the amount of capital he advanced, if there should be any profit, it was to be equally divided between them; that he had advanced $1,750 capital; that the plants, shrubs and slat house are perishable, and that it would be to the best interests of all parties that they be sold. He ordered a sale by the register, and prescribed the details to be observed. The register gave notice of sale as directed, and on the day before the date set for the sale, this appeal was taken by giving security for costs without a supersedeas. The register proceeded with the sale and made his report, showing that the widow bought some of the plants for $150, and a third person named Johnson bought the balance for $1,500.

Appellant filed exceptions to the register's report. They were heard and overruled, the report was confirmed, and the register ordered to pay to the widow all the purchase price, less the costs of court. No appeal was taken from that decree.

In various assignments of error, appellant contends that the decree dated December 7, 1939, fixing the rights of the parties and ordering a sale was erroneous and prejudicial in many respects. He also assigned as error the decree rendered after the appeal was taken confirming the register's report. Appellee joined issue on such assignments in writing on the record.

Such a joinder in error is said to be a waiver of certain defects or omissions in the record. Thompson v. Lea, 28 Ala. 453. There seems to be some confusion in the cases as to whether parties may waive certain preliminary steps in taking an appeal upon the basis of that authority. It was held that a proper certificate of appeal showing that it was taken in due time, and the citation of appeal with due service give this court jurisdiction to proceed without objection, though the transcript does not show the filing of a bond. Lowry v. Hill, 211 Ala. 645, 101 So. 586. We referred to these cases in Murphy v. Freeman, 220 Ala. 634, 127 So. 199, 70 A.L.R. 381. This is of course upon the idea that appellees waived such omission on the submission. But there are authorities which indicate that an attempt to appeal by filing a bond not wholly void within the required time is essential to jurisdiction, and unless that is done the parties cannot waive it. See Colbert County v. Tennessee Valley Bank, 225 Ala. 632, 144 So. 803.

We will not here undertake to reconcile any apparent conflict. Each case was probably correctly decided, and but stated principles not necessary for determination. We leave the questions for decision as each may arise, referring particularly to section 6101, Code, enacted in 1919.

But under any view of the cases, when no attempt is made to appeal from a decree and the record shows that, with no certificate by the clerk, no bond or citation so reciting, jurisdiction to review that decree cannot be conferred by a mere assignment of it as error with a joinder in the assignment. Such is the status of this record as to the decree of December 19, 1939.

The rule obtains in this court that on an appeal from a decree such as that here of December 7, 1939, which is a final decree and will support it, decrees subsequently rendered, such as confirming the register's report of sale and ordering distribution of the proceeds, may not be assigned. Kimbrell v. Rogers, 90 Ala. 339, 7 So. 241.

Moreover, the purchaser of the property at the sale is a necessary party to such appeal as will review the decree of the court which confirms the sale to him, and overrules exceptions to the report of such sale. Spence v. Spence, Ala.Sup., 195 So. 717; Kitchell v. Irby, 42 Ala. 447; Harduval v. Merchants' & M. Trust & Savings Bank, 204 Ala. 187, 86 So. 52; 2 Amer. Jur. 954, section 179; 16 R.C.L. 1113, section 81; Platt v. City of Punta Gorda, 98 Fla. 1242, 125 So. 381.

He should have citation in such an appeal and be heard on it. We cannot therefore review the decree confirming the sale and ordering distribution of the purchase money.

As we have shown, there was no supersedeas of the decree ordering the sale, and at the sale the purchaser of most of the property was a person not a party to the suit. So that a reversal of the decree to the extent that the sale was ordered on account of mere error not affecting its validity cannot serve to vacate the sale or disturb the rights of that purchaser. Lesslie v. Richardson, 60 Ala. 563; Marks v. Cowles, 61 Ala. 299; Ivie v. Stringfellow's Adm'r, 82 Ala. 545, 2 So. 22; Carroll v. Draughon, 152 Ala. 418, 421, 44 So. 553, 126 Am.St.Rep. 51.

Mrs. Solomon bought the japonicas and azaleas for $150. She was a party to the suit. All the balance of the plants, shrubs and slat house were sold to J. Guy Johnson for $1,500. He was in no other way connected with the suit.

So that if the decree of sale from which this appeal was taken is erroneous to reversal, the effect is to set it aside and vacate it insofar as there was error, but not so as to prejudice the rights of Johnson to the extent of his purchase. It would, however, vacate all other proceedings had upon its authority, which are controlled by it to the extent that it may be held erroneous. For as between the parties to the suit a reversal has that effect. Marks v. Cowles, supra.

It is material to determine whether the relation of the parties was a joint adventure or a partnership. The authorities seem to hesitate to specify a hard and fast rule by which the situation should be so classed as to be designated one or the other. It is conceded that the divergence is very slight at times. But when the question arises it is treated as one or the other upon the basis of its circumstances. The authorities sometimes declare that the principal difference is that a partnership is more general in respect to its business transactions, and a joint adventure usually relates to a single transaction or single or restricted sort of business. Saunders v. McDonough, 191 Ala. 119, 67 So. 591. Various illustrations are set out in 33 Corpus Juris 845 et seq., section 16. See 15 R.C.L. 500, section 2. Our own cases have treated such an arrangement as we have here as a joint adventure without particular discussion. Elledge v. Hotchkiss, 222 Ala. 129, 130 So. 893; Hill v. Hill, 208 Ala. 659, 95 So. 29; Zingelmann v. Turner, 235 Ala. 102, 177 So. 627.

The relation between joint adventurers is not terminable at the pleasure of one of the parties so long as its purpose is unaccomplished. If one of them refuses to perform his obligation, the others may use due diligence to minimize the damage (15 R.C.L. 506, note 6), or sometimes terminate their relations. Saunders v. McDonough, supra, see pages 130, 131 of 191 Ala., 67 So. 591.

When one of the parties dies, it does not follow that the further management of the enterprise or its settlement falls on the survivor, or that he has the right to the...