Wells v. American Mortg. Co. of Scotland

• Decision Date: 31 May 1899
• Citation: 123 Ala. 413,26 So. 301
• Parties: WELLS v. AMERICAN MORTG. CO. OF SCOTLAND, LIMITED.
• Court: Alabama Supreme Court

26 So. 301

123 Ala. 413

WELLS v. AMERICAN MORTG. CO. OF SCOTLAND, LIMITED.

Supreme Court of Alabama

May 31, 1899

Appeal from chancery court, Shelby county; J. R. Dowdell Chancellor.

Petition by H. R. Wells, administrator of the estate of Sarah Wells against the American Mortgage Company of Scotland, Limited. From a decree dismissing the petition, the petitioner appeals. Affirmed.

On November 23, 1887, the plaintiff filed a bill asking for the foreclosure of a certain mortgage executed by Sarah Wells deceased, to the complainant. In this suit a decree was rendered granting the relief prayed for by the complainant ordering the sale of the lands conveyed in the mortgage, and that the register report this account under said decree, of the amount, if any, remaining due upon the mortgage debt. The lands were sold as ordered in said decree, and the register reported that there still remained due on the mortgage indebtedness the sum of $1,541.26. Upon the coming in of this report, on motion of the complainant to confirm said report, and for judgment for balance ascertained to be due against H. R. Wells, as administrator of the estate of Sarah Wells, deceased, there was a decree rendered on September 22, 1896, confirming the report of the register, and, further, that the complainant have and recover of H. R. Wells, administrator of the estate of Sarah Wells, deceased, the sum of $1,548.26. Upon this decree execution was issued against H. R. Wells on July 24, 1897, in favor of the complainant, and was returned "No property found." On February 4, 1898, another execution was issued against H. R. Wells in favor of the complainant for said sum of money, and the sheriff levied said execution upon property belonging to H. R. Wells. Thereupon H. R. Wells filed his petition, setting out the facts as stated above, and averring that no notice of any reference to be held by said register to ascertain the balance due after said sale was given to the petitioner, and that he had no notice of any motion for the judgment over against him for the balance due complainant after the sale of the property which was ordered to be sold, and that, therefore, the personal decree against the petitioner was void. The other averments of the petition are sufficiently stated in the opinion. The prayer of the petition was that said decree against the said H. R. Wells, as administrator of the estate of Sarah Wells, deceased, and said execution and sale, be annulled and set aside, and that the register be required to certify said decree to the probate court of the county as claimant against said insolvent estate. The complainant demurred to this petition, and moved to strike it from the file upon the grounds that it appears from said petition that it is an attempt to call into question a final decree of this court in a court in which it was rendered after the adjournment of the term when it was rendered, that it was not a bill of review, and that there are no allegations of fraud. Upon the submission of the cause upon the motion to strike said petition and upon the demurrers the chancellor rendered a decree sustaining the motion and the demurrer, and ordered that the petition be stricken from the file. From this decree the respondent petitioner appeals, and assigns the rendition thereof as error.

Tyson, J., dissenting.

W. S. Cary, for appellant.

Knox, Bowie & Dixon and W. F. Thetford, Jr., for appellee.

TYSON J.

The other members of the court are of opinion that by sheer force of the statute a claim for decree over for any balance of the mortgage debt left after the application thereto of the proceeds of the sale of the mortgaged property is within the lis pendens of every foreclosure suit from the moment of its institution, and, of consequence, that, while it is necessary for the complainant to move for such decree over after the balance has been fixed and ascertained, no notice of such motion need be given to the respondent. He has notice of complainant's claim in that regard, and of his right to make such motion in the contingency named, and that it will be made, from the first, just as he has notice of all other relief the complainant may be or become entitled to in the cause. Code, § 859, and cases there cited. It follows that the decree must be affirmed.

I cannot concur in these views, and accordingly express my dissent therefrom in the remaining portion of this opinion. It appears that on the 22d day of September, 1896, a decree was rendered in the foreclosure proceedings by the chancery court in favor of the complainant and against the respondent, Wells, as administrator of the estate of Sarah Wells, for the deficiency found to be due upon the mortgage debt after allowing as a credit the proceeds of the lands conveyed by the mortgage, and ordering the issuance of execution against him. On the 17th day of March, 1898, the respondent, Wells, petitioned the chancellor in term time to quash the execution which had been issued against him personally, after a return by the sheriff of one previously issued upon the decree against him in his representative capacity, indorsed "No property found." The grounds alleged in the petition were that the decree for the deficiency was void for the reason that the respondent, Wells, had no notice of any reference by the register ascertaining the balance due the complainant, or of any notice of the motion of complainant for a personal decree for the deficiency. It was also averred in the petition that respondent's intestate owned no property except the lands conveyed by the mortgage at the time of her death, and the estate had been declared insolvent by the probate court of Shelby county prior to the rendition of the decree of the 22d of September, 1896. The petition was submitted for decree upon its merits, and motion of complainant to strike it, and demurrer. The chancellor ordered it stricken from the file, and decreed the petitioner liable for the costs incident to the filing of the petition, motion, and demurrer, and ordered execution to issue against him for these costs.

The first question raised by the appellee is that the decree dismissing the petition will not support an appeal, under section 426 of the Code. If a want of jurisdiction was apparent on the record to decree the deficiency and order execution, the motion to quash the execution was the proper procedure to vacate the order in the decree for its issuance and an appeal will lie from the judgment or decree granting or denying it. 3 Brick. Dig. p. 584, § 124. It is well settled that where a decree, void for want of jurisdiction, has been rendered, the court has the power, and should, on motion, vacate such decree, at any time subsequent to its rendition, but, if the decree is not void, the court has no power to alter, vary, or annul it after the expiration of the term at which it was rendered, except for clerical error or omission on evidence shown by the record. Baker v. Barclift, 76 Ala. 414; Buchanan v. Thomason, 70 Ala. 401. If void for want of jurisdiction in the court to render it, it was a mere nullity, and may be impeached collaterally. 2 Brick. Dig. p. 157, § 17. Did the court have jurisdiction to render the decree for the deficiency, or, rather, did the court exceed the jurisdiction invoked by the bill in the rendition of this decree? In solving the answer to this question, we are, of course, confined to the record in the cause, and evidence aliunde cannot be resorted to to aid us in its solution. Werborn v. Phinney, 74 Ala. 591; Lightsey v. Harris, 20 Ala. 409; Brown v. Turner, 11 Ala. 758; Pettus v. McLannahan, 52 Ala. 55. The rule announced in the case of Commissioners' Court v. Thompson, 18 Ala. 694, and amplified in other cases which we will cite, will serve largely to solve the question under consideration. Nothing is intended to be without the jurisdiction of a supreme court (or a court of general jurisdiction) but that which specially appears to be so; and, on the contrary, nothing is intended to be within the jurisdiction of an inferior court (or court of limited jurisdiction) but that which is so expressly alleged. "Inferior courts," says Bacon, "are bound in their original creation to causes arising within such limited jurisdiction; hence it is necessary for them to set forth their authority, for nothing shall be intended within the jurisdiction of an inferior court but what is expressly alleged to be so." It has been repeatedly held that, where the court is one of limited jurisdiction, though it may not, strictly speaking, be an inferior court, the cause must appear on the record to be within the jurisdiction; and it must appear from the face of the proceedings that such courts have acted within the scope of their jurisdiction." After quoting a part of this language in the case of Pettus v. McLannahan, 52 Ala. 55, the court, said: "From the mere exercise of jurisdiction by a court of general or superior jurisdiction the existence of the jurisdictional facts is inferred, unless the record discloses the contrary. From the exercise of jurisdiction by a court of inferior or limited jurisdiction the existence of jurisdictional facts is not inferred; they must affirmatively appear from the record." This doctrine is thus stated in Robertson v. Bradford, 70 Ala. 387: "The principle is now too thoroughly imbedded in our system of jurisprudence to be disturbed at this late day that there is a manifest distinction touching presumption of jurisdiction between courts of general and those of limited jurisdiction. Where a court is of the first class, possessing general jurisdiction, nothing is intended to be without such jurisdiction, except that which appears to be so from the record. And, on the contrary, nothing is presumed to be within the...