Sawyer v. Edwards

• Decision Date: 19 April 1917
• Docket Number: 4 Div. 665
• Parties: SAWYER et al. v. EDWARDS et al.
• Court: Alabama Supreme Court

75 So. 338

200 Ala. 26

SAWYER et al. v. EDWARDS et al.

4 Div. 665

Supreme Court of Alabama

April 19, 1917

Appeal from Chancery Court, Coffee County; O.S. Lewis, Chancellor.

Bill by Jeff and Roxie Edwards against J.P. Sawyer, the Brockton Mercantile Company, and the First National Bank of New Brockton to enjoin foreclosure of a mortgage, for an accounting, and to redeem. From a decree denying the right to let respondents in to defend and to show settlement made respondents appeal. Reversed and remanded.

W.W Sanders, of Elba, and H.L. Martin, of Ozark, for appellants.

J.A Carnley, of Enterprise, for appellees.

SAYRE J.

On their bill filed to prevent the foreclosure of a mortgage and to redeem appellees had a decree pro confesso before the register. Afterwards the cause was submitted to the chancellor for decree under section 3164 of the Code as amended by the act of September 17, 1915 (Acts 1915, p. 606) whereupon a decree was rendered declaring appellees' right to redeem and ordering a reference for the ascertainment of any balance due on the mortgage. Within 30 days after the last decree appellants filed their petition or motion, showing to the court that the cause had been settled between the parties prior to the several decrees mentioned above, and praying that said decrees be set aside to the end that appellants might be let in to defend by showing the settlement aforesaid. This petition was acted upon by the chancellor some months later, at which time it was denied on the ground that the court had no jurisdiction by reason of the act of March 17, 1915 (Acts 1915, p. 135), which reads as follows:

"The chancery court shall always be open for the transaction of any business therein, but the court shall not have the power to open, or set aside any final decree after the lapse of thirty days from the date of its rendition."

It is not made to appear when the petition was submitted to the chancellor for decree, and it can hardly be supposed, if it were submitted within any time allowed by law, that jurisdiction could be avoided to the hurt of petitioners or movants by a simple refusal to exercise it; but, aside from that, a quotation from the opinion of the court in Ex parte Elyton Land Co., 104 Ala. 88, 15 So. 939, will shed light upon the difficulty the chancellor found in the case at bar:

"Taken in a strict, technical sense, the final decree of a court of chancery is the sentence of the court, finally and conclusively determining all the matters in controversy, disposing entirely of the cause, leaving nothing further for the court to do. Such is not the meaning of the term 'final decree,' as it is employed in the statute [of appeals]. The test of the finality of a decree to support an appeal is not whether the cause remains in fieri, in some respects, in the court of chancery, awaiting further proceedings, necessary to entitle the

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