62 So. 798 | Ala. | 1913
— The original bill, filed October 25, 1909, by Stephen Bell against George McLaughlin, was designed to- invoke only the statutory system provided to compel the determination of claims to real estate. Code, §§ 5443-5448.
McLaughlin constituted his answer a cross bill; and therein sought to invoke the general jurisdiction of equity to cancel and remove as cloud upon his title a certain paper, of date February 19, 1869, purporting to be a deed from Peyton King to Stephen Bell. This cross-bill also expressed the purpose to invoke the statutory system for the determination of claims to real estate, and thereby to have cross-complainant’s title quieted as against any right, title, or claim of original complainant, Stephen Bell. Neither the original bill nor the cross-bill carried the averment that there was no suit pending to enforce or test the validity of the title, claim, or incumbrance claimed or reputed to be claimed by the respondent or cross-respondent, respect
Generally speaking, cross-bills are divisible into two classes: those which are simply defensive of the case made by the original bill, including in this category such pleading when employed to introduce facts in aid only of a complete determination of the matter already in litigation — a pleading possessing no distinct individuality and upon which no distinct relief can be granted; and those which set up additional facts relating to the subject-matter of the original bill — but which are not averred in the original bill — and prays for affirmative relief against the complainant or complainants, or against a codefendant or codefendants, or against any others who, though not parties to the original bill, are necessary parties to the cross-bill. Sims’ Chancery Pr. p. 421 et seq.; Wilkinson v. Roper, 74 Ala., 140, 145, 146; Story’s Eq. Pl. notes on pp. 373, 386, 387, 9 South. 423; Continental Ins. Co. v. Webb, 54 Ala. 688; Ex parte Jones, 133 Ala. 212, 214, 32 South. 643; 5 Ency. Pl. & Pr. p. 648 et seq.; Coster v. Georgia Bank, 24 Ala. 37; Paulling v. Creagh, 63 Ala. 398.
The general rule is that upon the dismissal of an original bill a defendant’s cross-bill falls with it. But “where the cross-bill shows grounds for equitable relief for matters growing out of the subject-matter of the original bill which may uphold the jurisdiction of the court independent of the original billP the dismissal of the original bill will not carry with it such a cross-bill. Etowah Mining Co. v. Will Valley Mining Co., 121 Ala. 672, 674, 25 South. 720. The italicized lang
While a cross-bill has characteristics of, and is subject to, rules of law and procedure applicable to a separate suit, it is not a distinct action; for, among other reasons, the cross-complainant may be eliminated as a party defendant as the result of amendment of the original bill by the original complainant, and the provision of the statute (Code, § 3118) obviating the necessity, if it were a distinct action, to issue summons to a defendant who was a complainant in the original bill.
The cross-respondent did not plead to the cross-bill in any form. Decree pro confesso was entered against him; and the submission for decree included that confession of the facts well pleaded.
It is suggested that the omission to aver in the original bill, with the like omission in the cross-bill, that there was no suit pending to test the claim, etc., of thé respective parties was the omission of jurisdictional averment in a tribunal of special limited powers in the premises. See Martin v. Martin, 173 Ala. 106, 55 South. 632. We do not find it necessary to decide that question, as it relates to either the original or the cross-bill. Assuming, for the occasion only, that the stated
An instrument, void on its face, is incapable of creating a cloud on title. Rea v. Longstreet, 54 Ala. 291, 295; Parker v. Boutwell, 119 Ala. 297, 302, 24 South. 860. The failure of the cross-respondent to demur to the cross-bill on that account was a waiver of the objection. Penny v. B. & A. Mort. Co., supra. So, while on seasonable objection the cross-bill must have been held to be without equity, yet it awakened the general jurisdiction of equity to the end the cross-bill prayed. And in consequence, even if the original bill was wholly unavailing because of the omission of the (assumed for the occasion) jurisdictional averment of no suit pending, the independent equity afforded by the cross-bill served to support the jurisdiction of the court in the premises. — Author, supra.
Affirmed.