Taylor v. Taylor

• Decision Date: 01 May 1981
• Citation: 398 So.2d 267
• Parties: Mary Ruth TAYLOR v. Cecil H. TAYLOR. 79-932.
• Court: Alabama Supreme Court

Page 267

398 So.2d 267

Mary Ruth TAYLOR v. Cecil H. TAYLOR.

79-932.

Supreme Court of Alabama.

May 1, 1981.

Chris S. Christ and Michael Sheier, Birmingham, for appellant.

Bobby R. Newman of Nolen & Newman, Fayette, for appellee.

ALMON, Justice.

Cecil and Mary Ruth Taylor were divorced in 1975. As part of the divorce decree, the judge awarded Mary Ruth possession of the Taylors' forty acres during the minority of the Taylors' children. In July of 1979, Cecil petitioned the court to sell the property and divide the proceeds. The trial judge determined that Cecil was entitled to his requested relief and entered an order which provided in part:

Therefore, it is the Order, Judgment and Decree of this Court, that the Clerk of the Court proceed to sell the above described lands at public outcry, to the highest bidder for cash, in front of the East door of the Courthouse at Fayette, Alabama, after having given notice of the time, place and terms of the sale with a description of the land to be sold, for thirty (30) days by advertising for four (4) successive weeks in the Marion County, The Journal Record, a newspaper of general circulation published in Marion County, Alabama.

After such sale has been made, the Clerk will make and file in his office a written report of said sale, and that said report shall lie over in the Office of the Clerk for five days for exceptions and objections thereto by any party of interest, and after the expiration of said five days, the Clerk shall forward said report of sale together with the exceptions or objections, if any, which have been interposed to the Judge of said Court for consideration and decree.

Although not clear from the record, it appears that notice of the sale which was to be held on February 18, 1980, was published before the sale was stayed pending an April 28, 1980, hearing on Mary Ruth's motion for new trial. When her motion was denied at that hearing, the trial judge issued an order which provided, in part:

It is further ORDERED, ADJUDGED AND DECREED, by this court that the Clerk is hereby ordered to advertise for sale the land, which is the subject of this law suit, for two (2) successive weeks in the Marion County, The Journal Record, a newspaper of general circulation published in Marion County, Alabama, and sell the same under the terms as heretofore specified by orders of this Court.

The notice of sale published in The Journal Record on May 1, 1980 and May 8, 1980, provided:

Notice is hereby given that under the terms of the decree rendered in this cause on January 11, 1980, I, Pride Gann, Clerk of said Court, will sell at public auction to the highest bidder for cash, in front of the West door of the Courthouse in Marion County, Alabama, on Friday, May 9, 1980, during the legal hours of sale, said legal hour being 11:00 A.M., the following described real estate, to-wit:

(description of the property to be sold)

Pride Gann

Circuit Clerk

5-1,8

The sale was held on May 9, 1980, in accordance with the notice. Cecil Taylor was the successful bidder at a purchase price of $42,000.00. The clerk of the circuit court filed the report of sale with trial judge on May 15, 1980, and he confirmed the sale after finding:

And it appearing to the Court that said sale was fairly and legally conducted in accordance with law and the former decree of this Court and the price paid for said property not disproportionate to the real value of said real estate; that said Clerk's Report has lain over in his office for five (5) days for the filing objections or exceptions and none have been filed.

On June 26, 1980, Mary Ruth Taylor filed notice of appeal.

The question we must initially decide is Cecil's motion to dismiss this appeal. He contends that Mary Ruth's motion for new trial was denied on April 28, 1980, that the order denying same was entered on the docket on that date, and that the forty-two day period provided by Rule 4, ARAP, within which she could appeal expired on June 9, 1980. He argues that Mary Ruth's notice of appeal filed June 26, 1980, is untimely and therefore is due to be dismissed pursuant to Rule 2(a), ARAP.

It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved. Kelley v. U.S.A. Oil Corp., 363 So.2d 758 (Ala.1978); Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So.2d 653 (1967). Decrees and orders entered in equity proceedings involving the sale and division of real property present an unusual situation, as this Court has previously noted:

Equity decrees may be partly final and partly interlocutory. A decree which ascertains and declares the rights of the parties and settles the equities is a final decree, although it provides for further proceedings under the direction of the court in order to make the final decree effective, such decree is interlocutory and remains within the control of the court because as to such decree and further proceedings thereunder the cause remains in fieri. * * *

This rule is strikingly illustrated in suits in equity to sell lands for division. When the court orders the land sold, that decree is final insofar as it will support an appeal. Three illustrations of our entertaining appeals from such decrees are Berry v. Berry, 266 Ala. 252, 95 So.2d 798; Coppett v. Monahan, 267 Ala. 572, 103 So.2d 169; Raper v. Belk, 276 Ala. 370, 162 So.2d 465. We have also held that the decree confirming the sale is the final decree in judicial proceedings for the sale of lands for division, Pettit v. Gibson, 201 Ala. 177, 77 So. 703; and that a sale of land for division among joint owners is not binding until confirmed by the court.

Sexton v. Sexton, 280 Ala. 479, 195 So.2d 531 (1967) (citations omitted).

It is clear from the notice of appeal that Mary Ruth does not appeal from the decree ordering the sale, but instead appeals from the decree confirming the sale. The forty-two day period for appeal from that...