Allen v. Allen

80 Ala. 154 | Ala. | 1885

SOMERVILLE; J.

The chancellor very clearly erred in dismissing the motiou made by the appellant to set aside the sale of the lands in controversy, upon the theory that the appeal pending in this court deprived him of 'all jurisdiction of the matter. We do not doubt that, when a decree has been rendered by a court of equity, and an appeal has been prosecuted to this court from such decree, a chancellor would no longer have such jurisdiction of the cause as would enable him to render any further decree affecting the rights and equities of the parties in the same cause- during the pendency of the appeal.

The present motion, however, is a separate and distinct proceeding from the chancery suit which culminated in the decree from which the appeal in question was taken. It is based upon grounds which have nothing to do with the equities involved in and settled by that decree, and which have even originated subsequent to its rendition. The purpose of the motion is not to raise any question going behind the decree or concluded by it, but only to prevent any abuse of the process of the court by the agency of which it is sought to enforce the execution of the decree. It is manifest that whatever course may be taken by the appellate court as to the decree appealed from, whether it be affirmed or refused, the questions arising from this motion would neither be discussed nor determined. Courts of law and equity alike exercise the jurisdiction of setting aside sales where there has been an abuse of their process, and for the advancement of the ends of justice. Holly v. Bass, 68 Ala. 206. The universal practice is to allow a separate appeal for judgments involving the determination of motions of this nature on the theory that they are original suits separate and distinct from the principal suit or action to which they are merely collateral.

It is contended that the register had no authority, under the statute, to issue execution against the property of the defendant as an individual, but only as executor, because he was sued in the latter and not in the former capacity. Section 3908 of the present Code (1876) is relied on in support of this view, and would sustain it if the section stood alone, and unmodified by other statutory provisions. But section 3906 provides that all writs for the collection of money, which are in use in the common law courts, “ are to be adapted to the execution of decrees in the courts of chancery.” The purpose of this truism, in our opinion, was to assimulate the whole system of executing the judgments of the Chancery Courts to that prevailing in our Circuit Courts, as far as practicable, and to allow in each court like writs of execution in like cases. This would authorize the issue of execution against an executor or administrator personally, to be levied of his individual property, after the previous issue of execution against him in his representative character, with the return of “ no property ” by the sheriff or other officer of the county in which the judgment was rendered. — Code, § 2620.

It is obvious that the issue of an execution against the appellant personally was authorized by a return of “ no property ” by the sheriff of Jefferson county, where the judgment was rendered on which the execution issued, and that it was not necessary to have first sent an execution to Russell county to be levied de bonis testatoris, as is contended.

It may be that the averment made in the petition, that the real estate in controversy “ was sold for a grossly inadequate price,” was rather the averment of a legal conclusion than a mere matter of fact, yet there was no objection by demurrer, or otherwise, to this alleged defect or insufficiency of pleading, which was susceptible of being remedied by amendment, had attention been called to it in the court below. The chancellor made no decision on this feature of the complaint, and properly so, because he could allow no objection of this nature which was not distinctly stated in the demurrer. — Code, 1876, § 3005. For these reasons wo decline to consider any question now raised for the first time in this court, based on this alleged defect in pleading. — Humphreys v. Burleson, 72 Ala. 1; P. & M. Mut. Ins. Co. v. Selma Savings Bank, 63 Ala. 585.

Reversed and remanded.