Stuckey v. Murphy

• Decision Date: 03 December 1931
• Docket Number: 4 Div. 564.
• Citation: 224 Ala. 8,138 So. 289
• Parties: STUCKEY v. MURPHY.
• Court: Alabama Supreme Court

138 So. 289

224 Ala. 8

STUCKEY v. MURPHY.

4 Div. 564.

Supreme Court of Alabama

December 3, 1931

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Bill in equity by Mrs. S.D. Stuckey against Matt H. Murphy, as receiver of the Alabama Mutual Building & Loan Association with a cross-bill by respondent. From a decree overruling a demurrer to the cross-bill, complainant appeals.

Reversed and remanded.

FOSTER and KNIGHT, JJ., dissenting.

A. R Powell, of Andalusia, for appellant.

Marcus J. Fletcher, of Andalusia, for appellee.

BROWN J.

This appeal is from a decree of the circuit court overruling the complainant's demurrers to the defendant's statutory cross-bill.

The only question argued is that presented by the second assignment of error, "The lower court erred in taking a submission on the demurrers under rule H as amended." This same question was presented to this court in Spear et al. v. Virginia-Carolina Chemical Corp., 136 So. 805 and it was there held that said rule H, adopted by the circuit court, allowing submissions for decree on demurrer without notice, was inconsistent with rule 74 of Chancery Practice, and this inconsistency rendered rule H void. Therefore, the submission taken on the demurrer without notice was an irregularity that rendered the decree appealed from erroneous, and the decree was reversed and the cause remanded.

There is no division of judgment here that the holding in the above-cited case as to the inconsistency of rule H with rule 74, but it is urged, on the authority of Hudson v. Hudson, 204 Ala. 75, 85 So. 282, Doty v. Pope, 213 Ala. 4, 101 So. 883, 884 and Gray v. Bank of Moundville, 214 Ala. 260, 107 So. 804, that appellant waived this irregularity by appealing from the decree.

The statement found in the last paragraph of the opinion in the case of Doty v. Pope, supra, which we italicize below, is relied on to sustain this contention; this we now quote: "But nothing of this can avail appellant, whose argument is not upon the assignment of errors which, very plainly, raise no reviewable question, but upon the motion for a certiorari. The assertion is that there was no order calling a special session of the court spread upon the minutes of the court, and the purpose of the application for certiorari is merely to make the absence of such order more definitely apparent, and upon that appellant contends that the judgment was void. This we have denied. But if the judgment was voidable as for error, appellant's remedy was not by direct appeal," citing Hudson v. Hudson, 204 Ala. 75, 85 So. 282. (Italics supplied.)

The proposition presented in that case was whether or not this court would issue a certiorari to bring up something to perfect the record which the appellant admitted did not exist; therefore, the statement, "But if the judgment was voidable as for error, the appellant's remedy was not by direct appeal," is not only dictum, but is manifestly unsound.

As a general rule, on appeal "the whole record is drawn under the consideration of the court, and advantage may be taken of all errors or irregularities which may have intervened in the course of the proceedings." McCall v. McCurdy, 69 Ala. 65, 71; Conway v. Clark, 177 Ala. 99, 58 So. 441; Hamilton et al. v. Tolley, 209 Ala. 533, 536, 96 So. 584; Griffith v. Ventress, 91 Ala. 366, 8 So. 312, 24 Am. St. Rep. 918.

By the appeal in this case, however, the record only in so far as it affects the integrity of the decree on the demurrer to the cross-bill is to be considered, and the order of submission is an essential part of that decree.

And irregularities in proceedings in disregard of the rules of chancery practice constitute such irregularity, as was observed in Conway v. Clark, supra: "Rules 20 and 23, Code of 1907, pp. 1533-1535, provide for the appointment of a guardian ad litem for a minor who is sued in chancery, and a decree rendered against said minor either pro confesso or upon the hearing in violation of the rule is irregular and will be reversed upon appeal." 177 Ala. 101, 58 So. 441.

Nor does the case of Hudson v. Hudson, 204 Ala. 75, 85 So. 282, 283, support the contention that by appeal from a decree on demurrer the defendant waived the right to question an irregular submission. The question was extensively treated in that case, and was disposed of contrary to the contention that the submission was irregular in the following utterances: "The bill of complaint in this cause was filed on May 30, 1919; respondent's demurrer was filed on June 28, 1919; and the decree at chambers overruling the demurrer was dated July 15th and filed July 16, 1919. The decree recites: 'This cause coming on to be heard is submitted for decree upon demurrers of defendant,' etc. It does not appear that the cause was set down 'for hearing' at chambers, but only that the 'decree was rendered' at chambers, and it is perfectly consistent with the record to presume that the cause was peremptorily called at the regularly appointed time therefor in Clay county, duly submitted in open court, and held for decree at chambers." (Italics supplied.)

The further expression in that opinion, "If this was not the case, and respondent was deprived of due process of law by the arbitrary action of the trial judge, he had his appropriate remedy for redressing the wrong, otherwise than by appeal," is based on the assumption that the record and proceeding of the court are prima facie free from irregularities, and if in fact there was an absence of due process, resort must be had to extrinsic evidence to impeach the record, and therefore appeal was not the proper remedy. Ex parte Brickell, Judge, 204 Ala. 441, 86 So. 1.

Gray et al. v. Bank of Moundville, 214 Ala. 260, 107 So. 804, 805, if at all applicable to the question, supports rather than militates against the contention that a party to a suit may in a proper proceeding impeach a judgment for irregularity in the submission of the case for decision. That was a bill filed by a mortgagee, not a party to the suit in which the judgment by default was rendered, who held a mortgage on property levied on under execution issued on the judgment by default, to enjoin the enforcement of the judgment and annul it on the ground that the judgment was void. The ruling there was, assuming that the submission was irregular, that it did not deprive the court of jurisdiction and therefore the judgment was not void. After stating the question presented, it was observed: "This, however, did not go to...