Vary v. Thompson

• Decision Date: 10 February 1910
• Parties: VARY v. THOMPSON.
• Court: Alabama Supreme Court

52 So. 951

168 Ala. 367

VARY v. THOMPSON.

Supreme Court of Alabama

February 10, 1910

Rehearing Denied June 30, 1910.

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Bill of review by W. A. Thompson against John Vary. From a decree in favor of complainant, defendant appeals. Reversed and rendered.

Charles E. Elder, for appellant.

Frank S. White & Sons and Carmichael & Wynn, for appellee.

McCLELLAN J.

In consequence of a bill originally filed by Vary against Thompson and others certain real estate in Jefferson county was decreed to be sold for division of the proceeds between Vary and Thompson, the then adjudged joint owners thereof. Thompson, complainant in the present bill of review assailing the mentioned decree, appeared in the original cause, and filed his demurrer to that bill, which demurrer was overruled. The decree overruling his demurrer granted Thompson 30 days in which to answer the bill. After the expiration of that period, as appears from the order of the court of date June 12, 1908, decree pro confesso was taken against Thompson. Subsequent to the entrance of that decree pro confesso, the complainant, Vary, sought to amend his bill. Notice of the application and purpose to amend as stated was undertaken to be given by an entry on the order book of and by the register of the court. The register fixed 5 days as the period after the expiration of which the amendment would be allowed. More than 60 days after the expiration of the stipulated period, the register entered in such order book an order reciting the allowance of the prayed amendment, and that after the expiration of the 5-day notice before mentioned. Six days after the order allowing the amendment was entered, upon motion of the complainant, Vary the court entered a decree pro confesso against Thompson to the bill as amended. Thompson remained entirely inactive in the cause otherwise than by his presentation of his demurrer to the original bill.

Bill of review, its office, scope, and effect, has been frequently considered by this court; and it was long since announced as settled that such a bill was not available in lieu of appeal or writ of error; but that to be available it must be apparent from the record that an erroneous conclusion of law of substance and not mere form, has been reached and effected by the court as affecting the rights of the parties; that errors otherwise, in the regularity of the proceedings erroneous deductions from the evidence, must be corrected by appeal or other action in that nature. McCall v. McCurdy, 69 Ala. 65; Tankersley v. Pettis, 61 Ala. 354; McDougald's Adm'r v. Dougherty, 39 Ala. 409; Jordan v. Hardie, 131 Ala. 72, 31 So. 504. And it may be added, in limitation of the foregoing statement of the sum of the holdings on this subject by this court, that errors subject to revision on appeal or on other like procedure may be the basis of a bill of review, but that not every irregularity available to reverse on appeal will support a bill of review. Authorities, supra.

The court below entertained the opinion that the bill of review was well filed, and hence overruled the numerously grounded demurrer of the appellant. Appellant, touching our first statement of ground for the bill of review, would answer and deny its efficacy by an appeal to Code 1907, § 3133. It is obvious that that section deals alone with notices where the party to whom directed is in default, and not to the period after the elapsing of which from perfected notice decree pro confesso may be taken. We do not understand that rule 48 of Chancery Practice is at all modified by the statute above cited. That rule provides, expressly, for the expiration of a 30-day period after notice of amendment, and we take notice to imply perfected notice. It appears, then, that the cause, after amendment of the bill, was put at issue by a decree pro confesso prematurely taken against a defendant who was already in default, and against whom a like decree had been taken as upon the original bill. On the third day after the entrance of the latter decree pro confesso the cause was submitted for final decree, upon the original bill as amended, both decrees pro confesso and depositions of witnesses named, and on that day final decree was rendered, and filed in the cause, granting the prayer of the amended bill.

We do not think there can be any serious doubt that the premature entry of the latter decree pro confesso, and such was the case in this instance, was a mere...