Williamson v. Burks
Decision Date | 31 March 1955 |
Docket Number | 6 Div. 627 |
Citation | 262 Ala. 422,79 So.2d 42 |
Parties | J. J. WILLIAMSON v. Henry T. BURKS et al. |
Court | Alabama Supreme Court |
deGraffenried & deGraffenried, Tuscaloosa, for appellant.
Ward & Ward, Tuscaloosa, for appellees.
Appeal from a decree overruling demurrer to complainants' amended bill of complaint. The original bill prayed for construction of a lease, and demurrer was properly sustained. The bill as amended has several aspects, one of which was the reformation of a written lease on the ground of mutual mistake, an established equitable remedy. Clipper v. Gordon, 253 Ala. 428, 44 So.2d 576.
The demurrer to the amended bill was to the bill as a whole and to each of the several aspects. The court overruled the demurrer generally. The effect of such a ruling was a ruling only on the demurrer to the bill as a whole and if any aspect was good, the decree is due to be affirmed. Rowe v. Rowe, 256 Ala. 491, 55 So.2d 749; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100.
Paragraph 3 of the bill begins as follows:
[Emphasis supplied.] It was the contention of the appellant in the court below and here, that this statement is 'a sufficient reference to the previous litigation for the court to take judicial knowledge thereof in passing upon appellant's demurrer,' and that the decree in the previous proceeding was res judicata. The bill of complaint, answer and cross bill of respondent, and the decree of the court in the previous proceeding are attached to and made a part of the demurrer last filed by the appellant.
The trial court wrote an opinion in overruling the demurrer in the instant case from which we quote in part:
'It further appears from argument of Solicitors for respondent and from the said demurrer of respondent to said complaint that the respondent is contending that the Court is presumed to know that this Court has ascertained and decreed in that certain case No. 9054 in the Circuit Court of Tuscalooso County, Alabama, In Equity, wherein Henry T. Burks, Henry T. Burks, Jr., and Thomas D. Farmer, were complainants, and J. J. Williamson, was respondent, that the lands of complainants described in Sub-Sections (A) and (B) in said paragraph 9 of said complaint as last amended were and are under lease to the respondent for the years 1952 and 1953, and that this Court is presumed to know his findings of facts in said Case Number 9054.
'Assuming (but not deciding) that this Court is presumed to know just what facts were ascertained by the Court in said Case No. 9054, and also assuming that this Court is presumed to know whether or not he decreed that the respondent had a leasehold or some other interest in said land described in Sub-Sections (A) and (B) in said paragraph 9 of said complaint as last amended, then this Court would hold as follows:
'The Court is of the further opinion that the proper way in this cause to raise the issue of res adjudicata as to said lands in this suit would be by answer or plea.'
The case of Ellison v. Norman, 256 Ala. 610, 56 So.2d 654, 655, is in point and the court said:
'The court rested decision sustaining the demurrer on the theory that 'the matters brought up in the bill of complaint have been heretofore adjudicated by the Court, are res judicata.' This ground of demurrer is not well taken, since there is nothing on the face of the pleadings to show any res judicata of the pending action. True, the demurrer exhibited two certain decrees which it is averred were rendered in two cases which are...
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Butler v. Olshan, 6 Div. 113
...to have this court notice and the record in the other case had not been brought to this court by appeal in any way. In Williamson v. Burks, 262 Ala. 422, 79 So.2d 42, this court refused to take notice of prior proceedings where respondent sought to have this court take such notice in order ......
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Tri-State Corp. v. State ex rel. Gallion
...Court to those grounds of demurrer which are addressed to the bill as a whole. Rowe v. Rowe, 256 Ala. 491, 55 So.2d 749; Williamson v. Burks, 262 Ala. 442, 79 So.2d 42; Adams v. Woods, 263 Ala. 381, 82 So.2d 531; McCary v. Crumpton, 263 Ala. 576, 83 So.2d 309; Smith v. Wilder, 270 Ala. 637,......
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Haavik v. Farnell
...us. See Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100; Shaddix v. Wilson, 261 Ala. 191, 73 So.2d 751; Williamson v. Burks, 262 Ala. 422, 79 So.2d 42; Davis v. Davis, 263 Ala. 42, 81 So.2d 314; Adams v. Woods, 263 Ala. 381, 82 So.2d 531; Marshall County Gas District v. City......
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