Valenzuela v. Sellers

CourtSupreme Court of Alabama
Citation253 Ala. 142,43 So.2d 121
Docket Number1 Div. 335
PartiesVALENZUELA et al. v. SELLERS.
Decision Date24 February 1949

Frank S. Coffin and Richard H. Coffin, Mobile, Richard L. Rives and John C. Godbold, Montgomery, for appellants.

Vickers, Leigh & Thornton, Mobile, for appellee.

SIMPSON, Justice.

The decree pro confesso on which rested the final decree from which this appeal has proceeded was entered the thirtieth day after the rendition by this court of a decree overruling the demurrer to the bill of complaint, that appeal having issued from a decree in the circuit court sustaining the demurrer to the bill. That appeal is reported as Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517.

The primary contention for error now is that the register was without authority to render the decree pro confesso until the expiration of thirty days from the decree here overruling the demurrer and that the final decree under such circumstances was erroneous. The contention cannot be sustained.

This is not a case where a review is sought to revise the discretion of the chancellor in setting aside or refusing to set aside a decree pro confesso after the publishing of the testimony, but is to pronounce void the decree pro confesso rendered under the circumstances stated, on the theory that it was prematurely granted, and to invoke error in the rendition of the final decree resting on such decree pro confesso.

The procedure is regulated by Equity Rule 24, Code 1940, Tit. 7 Appendix, which pertinently provides: 'When a demurrer is overruled, the defendant shall forthwith (we italicize) put in a plea or an answer, unless the court gives further time; and on failure to comply * * * a decree pro confesso may be entered * * *'.

This provision is substantially the same as in old Chancery Rule 30, and in construing the provision, this court held in Pearce v. Kennedy, 232 Ala. 107, 166 So. 805, that where a demurrer had been overruled, there being no answer offered or filed nor time allowed therefor by the chancellor, a decree pro confesso may be entered without reference to time, and thereafter the case could then proceed to final hearing on the following day. This case exactly controls the instant situation and it would be reading into the rule an unwarranted extension to say that 'forthwith' could be construed to mean an extension of the time to plead of thirty days from the rendition of the decree overruling the demurrer.

Ex parte Jones, 246 Ala. 433, 20 So.2d 859, is no governing authority for the instant case. There the lower court overruled the demurrer and allowed thirty days for further pleading, from which ruling an appeal was duly taken, thus having the effect of suspending the time until final affirmance of the decree in the appellate court; after which, there being no additional order relating to time, the thirty day period allowed by the original decree would be effective as of the date of filing of the certificate of the judgment of affirmance in the lower court.

In the case at bar no 'further time' was allowed by the court within which to further plead and, under the rule 24, it was incumbent upon the defendants to plead 'forthwith', that is promptly, without delay and as we view it, the Pearce case is directly controlling. See also Thacker Creek Coal Co. v. Smith, 238 Ala. 22, 23, 189 So. 69, to the same effect.

Were we to overlook the stringency of the construction accorded the term in the above Pearce and Thacker cases, we would say, having regard for the context, 'forthwith' connotes promptly, without delay and, when applied in Rule 24 to the performance of the act of pleading further, imports that the act shall be performed as soon as by reasonable exertion, confined to the subject, the act might be performed, 17 Words and Phrases, Perm. Ed., page 426 Mandatory Orders or Rules, Pocket Part, leading to the clear result that the performance of the act, so long delayed, fails to meet the demands of the rule.

On the record presented we see no escape from an affirmance of the decree.

The insistence, likewise, cannot be sustained, that the record reflects error in that, before the the last appeal, the trial court allowed the plaintiff to withdraw an amendment to the bill in order that the bill as theretofore filed might be reviewed, as against the then sustained demurrer. The withdrawal of such an amendment was within the discretion of the trial court, Southern Hardware & Supply Co. v. Block Bros., 163 Ala. 81, 82, 50 So. 1036; Deholl v. Pim, 219 Ala. 372, 373, 122 So. 320; 41 Am. Jur. 511, § 318; 49 C. J. 660, § 935, and this court on that appeal held the bill sufficient, Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517, and we are not disposed to again review the question.

The contention is also unsustainable that the register was without authority to enter the decree pro confesso. When acting within the limits of Rule 24, he had authority to grant such a decree; nor were the defendants, who were then in default, entitled to notice of the plaintiffs' application therefor. Equity Rule 32; Thacker and Pearce cases, supra.

Nor were the defendants entitled to notice of the last amendment to the bill striking one of the original defendants as a party, he not having been served with process. Other reasons aside, the other defendants were in default and no notice was due them. Equity Rule 28, subd. 1(g); Bell v. Bell, 245 Ala. 478, 481, 17 So.2d 666.

On the question of the sufficiency of the proof to sustain the decree, not only did the decree rest on a decree pro confesso, Rule 32, but there was sufficient legal evidence on which to rest a proper finding. The trial court is regarded as not having considered evidence which was illegal, irrelevant, incompetent or immaterial, under which circumstances, on appeal, the decree will be pronounced as well founded. Code 1940, Title 7, § 372(1), Cum. Supp.

Finally, no error appears in the ruling of the trial court denying the defendants' application for rehearing, the ruling on said motion not being reviewable on appeal unless the decree had been thereby modified. Rudolph v. Rudolph, Ala.Sup., 36 So.2d 902; Scott v. Scott, 247 Ala. 266, 24 So.2d 25; Linn v. Linn, 242 Ala. 688, 8 So.2d 187; Money v. Galloway, 236 Ala. 55, 181 So. 252; Equity Rule 62, Code 1940, Title 7 Appendix.

Our view is that no error is shown.



On Rehearing

BROWN, Justice.

The former appeal reported as Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517, was from a decree of the circuit court, sitting in equity, sustaining the respondent's demurrer to the bill as amended as of November 21, 1946. The demurrer embodied the ground 'for want of equity' and specific grounds. The ruling was reversed, the court holding that the bill as so amended was not subject to the specific grounds assigned and that the demurrer for want of equity, in the light of the rule that amendable defects will pro hac vice be considered as amended, was not well taken.

The decree entered here on November 6, 1947, overruled the demurrer and remanded the cause for further proceedings without fixing any time for further pleading by the defendant. It does not appear in this record when the certificate of reversal reached the register's office but we judicially know from the general custom and course of handling the business in the clerk's office of this court that such certificates are promptly issued and placed in the mails and that such certificates would not reach the register's office in Mobile, Alabama, until the next day or the day following, the 7th or 8th of November.

We are, therefore, of opinion on more mature consideration that Equity Rule 24, Code of 1940, Tit. 7 Appendix, p. 1064, was not applicable to the situation confronting the circuit court and the parties at the time the decree pro confesso was entered and such rule was erroneously applied in the opinion heretofore promulgated. Rule 30 of 'Chancery Practice' Code of 1923, Vol. 4, p. 917, the predecessor of Rule 24 of Equity Practice, provided 'When a demurrer is overruled, the defendant shall forthwith put in sufficient answer, unless the Chancellor gives further time.'--[Italics supplied.] The only change in the wording of the rule on bringing it forward into the present Code was the substitution of the words 'the Court' in lieu of 'the Chancellor', clearly indicating that said rule was dealing with the trial court where acting with the parties present in court.

An analogous situation is pointed out in the opinion of the court in Jones v. Henderson, 228 Ala. 273, 277-278, 153 So. 214, 218, where it was stated: 'When a demurrer is sustained for the lack of averments which can be made to give it equity, complainants should be granted the right to amend, unless it shows that it (the decree) was rendered in open court in the presence of counsel for complainants, and that they then did not claim the right, or in the progress of a trial on a setting of the cause for hearing. The decree here effectually denied them the right. To this extent we think there was error in the decree. Ezzell v. First Nat. Bank, 218 Ala. 462, 119 So. 2.' [Parenthesis supplied.]

An examination of the authorities shows that this analogy is of long standing and essential to the trial of causes on their merit and the due administration of justice. Gilmer v. Wallace, 75 Ala. 220; Gilmer v. Morris, 80 Ala. 78, 88, 60 Am.Rep. 85; J. Pollock & Co. v. Haigler et al., 195 Ala. 522, 70 So. 258; Davidson & Son v. Rice, 201 Ala. 508, 78 So. 862. In Olds v. Marshall, infra, written by Chief Justice Stone wherein there was a variance between the allegations and proof, it was stated in the opinion: 'The decree of the chancellor is reversed, and a decree here rendered, ordering that unless, within 40 days after the certification...

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