Vandeford v. Stovall

• Decision Date: 26 January 1898
• Citation: 23 So. 30,117 Ala. 344
• Parties: VANDEFORD ET AL. v. STOVALL ET AL.
• Court: Alabama Supreme Court

23 So. 30

117 Ala. 344

VANDEFORD ET AL. v. STOVALL ET AL.

Supreme Court of Alabama

January 26, 1898

Appeal from chancery court, Walker county; Thomas Cobbs, Chancellor.

Bill by A. M. Stovall against Mary J. Stovall and certain others who filed a cross bill, and who were afterwards dismissed as parties. From a decree in favor of complainant, Sarah Vandeford and the others who were dismissed as defendants appeal. Affirmed.

The bill in this case was filed for the establishment of a resulting trust in land. The original bill was filed by the appellee, A. M. Stovall, against Mary J. Stovall and the appellants. The appellants filed their joint answer to the original bill, and also a cross bill against the complainant in the original bill and Mary J. Stovall. The complainant demurred to the cross bill, which demurrer was sustained. Afterwards an amendment was made to the cross bill, which does not appear to have been demurred to, but was answered by A. M. and Mary J. Stovall. At the hearing, the complainant in the original bill, by an amendment filed by leave of court struck out all the parties defendant except Mary J. Stovall leaving the bill by him against her as sole defendant. The defendants to the bill, whose names were stricken out as parties by this amendment, separately objected to the allowance of the amendment as stated, "on the ground that the said respondents and cross complainants in this cross bill set up affirmative matter in their cross bill entitling them to relief affirmative in its nature and not appearing from the original bill." After the cross complainants were stricken out as defendants to the original bill, they proposed to amend their cross bill, which the court refused to allow them to do, because the bill had been dismissed as to them. The cross complainants at the hearing moved to submit their cross bill with the original bill and to file a note of submission. The chancellor denied this motion on the ground that the complainants in the cross bill had already been stricken out and dismissed as defendants to the original bill, and were not entitled to a submission of the same with the original bill. The original bill was duly submitted on pleadings and proof, and a decree rendered in favor of complainant according to the prayer of the bill. This appeal is prosecuted by the complainants in the cross bill, who assign as errors the amendment to the original bill, by which they, as defendants, were stricken out; the refusal of the court to allow them to amend their cross bill after the original bill had been dismissed as to them; the dismissal of the cross bill and the decree in favor of complainant against the only remaining defendant, Mary J Stovall.

Smith &amp Smith, for appellants.

Coleman & Bankhead, for appellees.

HARALSON J.

Before final decree, the amendment of a bill, by striking out or adding new parties, is a matter of right. When the complainant, therefore, moved to strike out as defendants the names of the several parties who filed a cross bill in the case, it was not a...