43 So. 346 | Ala. | 1907
Richard, Barron and others, on .February, 20,. 19Q5,. haying obtained- leave.,on their application filed Jpne 24, 1904,. filed their hill of review.in the chancery court of jgfferson county to review and reverse, the. decree,-in a. suit .brought .in-said court March 26, 1.901, by. the. Birmingham Realty .Company against, dames' M.. Kennplly. and .others, as the heirs at law and next, of kin of. E. H. Barron, deceased, to enforce a vendor’s lien, for the purchase price of real estate in the city of Birmingham,,in,which suit a final decree was rendered in favor of the complainant in the. suit December.9, Í901.. The bill, of review sets out all the proceedings-in the original cause, and it appears that all except onq of the defendants thereto were made parties in accordance with'the statute (Code 1896, § 690), which authorizes unknown non-resident defendants to he made parties by publication. The defendant who was known does not join in the bill of review, hut is made a defendant thereto.
.With respect of the unknown heirs at law and next of kin affidavit was: made by Alex. T. London, as agent of the complainant, which we think conforms substantially to the requirements of section 690 of the Code. The affidavit prescribed by rule 22 of chancery practice was made as to the nonresidence of James M. Kennelly, and thereupon the register made order of publication. A certificate was made by the register, showing that publication had been made in accordance with the order of publication,- and that a copy of the order had been posted at the court house door. A decree.pro confesso was ren
It is insisted-in-the-bill of'review that the court--did not acquire-jurisdiction'of the unknown defendants- in-the original cause oii .account, first,- of defects in the affidavit made with respect toMliem; and,-second, of-defective publication as to- these defendants. The attack upon the affidavit is made on numerous-- grounds,' hut only three are insisted' on in the brief of counsel, viz*: That- there is no authority shown on the-part of the affiant to make the affidavit for the Birmingham Realty Company; that the affidavit does not-show that the facts deposed to were within the knowledge of the affiant ; and that the affidavit- is made, not on the-knowledge of the affiant, hut on that of the Birmingham Realty Company. Whe:e an affidavit is made by one person in behalf of another, llm fact of agency must he shown in sown1 way; hut generally it is deemed sufficient if the fact of agency he stated by way of recital.—2 Cyc. pp. 6, 7. Jn an affidavit made by an agent, for a corporaciou,'a recital of the fact of affiant’s agency is usually regarded as sufficient to show his authority.—2 Cyc. p 9. The allegations of the affidavit are direct and positive, and the affiant swears positively, and not upon information and belief. Where this is-the case, it-will he presumed that the facts deposed to were' within the knowledge of the
The attack upon the publication is rested upon the ground that it contains no reference to the subject-matter. of the suit, nor to the title or interest of the defendants- therein; and it is contended that by reason of this omission the court did not acquire jurisdiction of the unknown defendants. The statute (Code 1896, j 690) prescribes that after proper affidavit has been made “the register must malte publication as in case of non-residents, describing such unknown parties, as near as may be,.-by the character in which they are sued, and with reference to their title or interest in the subject-matter.'’ No decision of this court has been called to our attention, nor have we found any, construing this provision of the statute. But prior-to 1845 there was-in force a rule of chancery practice which prescribed that “all orders of publication shall state succinctly the facts and objects of the bill.” — Code 1852, p. 719, rule 17. And the statute in force at that time provided that- “orders of publication must conform to the rule now in force in the courts of chancery -in this state, and to those which' hereafter may be made.” — Code 1852, § 2888. The statute now.under consideration was then in force as section 2889 of the Code of 1852.
In a case originating while rule 17 above ■ referred to was -in force, this court said: “The seventeenth rule is of the same nature as the statute regulation, directing a copy of the bill to be -served with the subpoena. Both were intended to advise the defendant of the description of the suit against him; but a mstake in the copy or brief of the bill, or even its entire omisson, does not give him, a right to reverse a decree otherwise free from error, if the service or publication is in other respects in accordance with -the statute.”—McGowan v. Branch Bank, 7 Ala. 823. This case establishes the proposition that, notwithstandng the statutory requirements that the order of publication shall state the facts .and objects of
The errors complained of in the final decree sought to be reviewed are not apparent in the face of the pleadings proceedings, and decree. The notes which are said to have been attached to the report of the register are not properly a part of the proceedings, but mere evidence. They are not made exhibits to the bill, and no refeience is made to them in the registers report. There is nothing in the pleadings, proceedings, or decree in the original case to show that a separate transaction of purchase was had as to each lot, and that a separate lien attached to each lot for .the purchase money thereof, or that an error was made in ascertaining the amount due.—McCall v. McCurdy, 69 Ala. 65; Tankersly v. Pettis, 61 Ala. 354; Ashford v. Patton, 70 Ala. 479. It follows that the chancellor erred in the decree rendered, and a decree will be here entered reversing his decree and dismissing the bill of review for want of equity.
Beversed and rendered.
