Snead v. Lee

• Decision Date: 24 May 1928
• Docket Number: 6 Div. 128
• Citation: 117 So. 469,218 Ala. 44
• Parties: SNEAD v. LEE.
• Court: Alabama Supreme Court

117 So. 469

218 Ala. 44

SNEAD v. LEE.

6 Div. 128

Supreme Court of Alabama

May 24, 1928

Rehearing Denied June 21, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill of review by Adam Lee against Laura Snead. From a decree overruling a demurrer to the bill, respondent appeals. Reversed and remanded.

Earl McBee and Hugh A. Locke, both of Birmingham, for appellant.

Louis Silberman, Smith & McCary, and Maud McLure Kelly, all of Birmingham, for appellee.

SAYRE J.

The court below overruled appellant's demurrer to appellee's bill of review for alleged error apparent on the face of the record affecting the decree in the cause entitled Laura Snead versus Adam Lee. Appellee's present bill alleges error in the original cause in the following particulars:

(1) The respective interests of the parties in the property ordered to be sold in lieu of partition in the original cause was not sufficiently alleged.

(2) The original complainant, appellant in this cause, was erroneously allowed compensation for improvements made by her upon the common property.

(3) The allowance to original complainant's attorney of a fee out of the common fund was error.

(4) The original cause was not at issue when the final decree was rendered.

Numerous grounds of demurrer to the present bill may be arranged as follows:

(1) The entire record of the original cause is not set out.

(2) There is no offer to do equity by returning the purchase money realized at the sale under the original decree.

(3) The bill states unauthorized conclusions not based upon matters of record.

(4) Laches.

(5) The general demurrer.

Bills of review have been the subject of frequent consideration in this court. Of them in a general way it will be enough to say at this time that the error to be reviewed must be error in substance, of prejudice to the party complaining, apparent on the face of the pleadings, proceedings, or decree. "Comparing the decree with the pleadings and other proceedings, it must be apparent that the court has reached and declared an erroneous conclusion of law, as to the rights of the parties." McCall v. McCurdy, 69 Ala. 65. "In favor of the correct ruling of the chancellor, we must indulge every reasonable presumption which the record does not affirmatively repel." Goldsby v Goldsby, 67 Ala. 564. The evidence noted in the original cause cannot be considered. Turner v. Turner, 193 Ala. 424, 69 So. 503; McDougald v. Dougherty, 39 Ala. 409.

The bill now under consideration exhibits the bill in the original cause, an amendment, service of which purports to have been accepted by this complainant, the original defendant, decree pro confesso, and final decree upon pleadings and proof ordering the property sold for division between the parties. It is averred that the property was under an order of court, sold and conveyed to the original complainant for the sum of $2,000, of which $1,750 was decreed to original complainant as compensation for improvements, $200 to original complainant's counsel, and $50 to the payment of costs, thus, if we may look to these averments, disclosing the fact that the present complainant had been improved out of his entire interest in the property. But there is no averment that these exhibits constitute the entire record in the original cause. The necessary inference is that the exhibits do not constitute the entire record, the additional averments with reference to the sale of the property and the application of the proceeds being mere conclusions of the pleader the propriety of which should have been shown by a copy or copies of the pleading and proceedings exhibited with the bill. In this respect the bill of review is defective. It should have shown all the proceedings and pleadings in the original cause. The court must be able to see clearly and confidently from the face of the record (not including the evidence) that error has been committed to the prejudice of the complainant in the bill of review. Goldsby v. Goldsby, supra; Taylor v. Crook, 136 Ala. 377, 34 So. 905, 96 Am.St.Rep. 26.

If the complete record had been properly pleaded, showing the alleged facts of which we have made mention, it would have shown that original complainant became the purchaser, that complainant in this cause got nothing for his interest in the property, and therefore that it was not incumbent on this complainant to offer a restoration of that part of the purchase money which had been decreed to him--for none had been so decreed. In the usual case such an offer would be necessary, for it is the spirit and purpose of the law, on consideration of a bill of this character, to require a restoration of the parties to the plight and condition in which they were at and prior to the rendition of the erroneous decree.

This proceeding was commenced on June 25, 1926. The decree adjudicating the equities of the parties became effective, by filing with the register, July 2, 1925. The statute, section 6608 of the Code, requires that applications to file bills of review must be made within three years after the rendition of the decree, with an exception in favor of infants and persons of unsound mind not important in this connection. There is nothing to show that the delay of less than twelve months in this cause has operated to the disadvantage of the present defendant. The ground of demurrer based on laches is not well taken.

The most important question presented is whether, assuming the record in the original cause to have been properly pleaded and that its disclosure would be in agreement with the averments of this bill, there could have been any equitable basis for a decree which would allow the present complainant to be improved out of all interest in the property held by him and this defendant as cotenants in equal shares. We say equal shares, because the court in its decree so found and because in the present stage of the proceedings that must be presumed. Long v. McDougald, 23 Ala. 413; ...