67 Ala. 560 | Ala. | 1880
The bill in this case was filed to obtain a review and reversal of an alleged former decree of the same court, allotting dower to the appellee. Relief is prayed on
The bill in this case does not attempt to set out any of the proceedings in the former suit in hcee verba. It proceeds on the plan of setting forth the substance of the former pleading, facts and decree. There is nothing peculiar, or which calls for comment, in the averments concerning the original bill. It describes it as presenting the familiar case of marriage, seizin in fee of the husband during the coverture, that complainant, the widow, was entitled to dower therein, that said tract of land had been purchased and acquired by the defendants in said original bill, and that the husband of complainant had died. The averments of the bill of review, touching the amended bill filed in the original suit, necessary to be here presented, are as follows: “ That the said Boy-kin Goldsby [husband] died without issue, and that thereupon the title to said tract of land . . passed by way of executory devise under the- provisions of the said will of Thornton B. Goldsby (senior), deceased, to the heirs at law of said Thornton B. Goldsby (senior), deceased.” The bill of review then avers that the amended bill set forth who were the heirs at law, viz: the complainants in this suit. The bill of review then proceeds: “ And such proceedings were had on said bill as amended, and supplemented, that ” the said heirs were served with process ; “ and that afterwards, on, to-wit, the 10th day of October, 1874,” another amendment was allowed, not necessary to be here noted. The averment concerning the decree in the original cause, is as follows: “ That such proceedings were thereupon had in said cause upon said bill of complaint as amended, that the cause being at issue as to all the parties thereto, was submitted by the said complainant upon the said will of Thornton B. Goldsby (senior), deceased, and the other testimony, for final decree ; and afterwards, on the 15th day of October, 1874, your Honor rendered a decree in said cause, and thereby ascertained and decreed that the said Sallie G. Goldsby, the complainant therein, was entitled to dower in said land.” The bill then avers the allotment of dower, stating the particular lands allotted, and how allotted, and adds : “ All of which will more fully and particularly, and at large appear, reference thereto being had, in and by the record and proceedings in said cause, still remaining of record in this court.” We omitted to state at the proper place, that in the bill of re
There is appended to this record a certified transcript of the original suit, which this bill seeks to review. This transcript appears complete, except the single deposition put in evidence on that trial. Why this transcript is attached to this record, or sought to be made a part of it, we are not informed, further than that it was sent up in response to a certiorari. It is not made an exhibit to the present bill, in such form as that we can consider it a part of it. — Rules 17 and 66, Chancery Practice. Nor does the record of the former suit appear to have been consulted in the trial of this cause in the court below. We do- not consider this attached transcript as any part of the reeord before us. •
“ It is a principle of universal application in pleading, founded on reason and good sense, that the title of the plaintiff should be stated with sufficient certainty and clearness, to enable the court to see clearly that he has such a right as warrants its interference, and the defendant to be distinctly informed of the nature of the cause he is called upon to defend.” — Cockrell v. Gurley, 26 Ala. 405. “ Bills in- chancery must set forth, not the evidence, but every material averment of fact necessary to plaintiff’s right of recovery. So complete
Story, in his Eq. Pl. section 420, speaking of the frame of a bill of review, says : “In a bill of this nature, it is necessary to state the former bill and the proceedings thereon, the decree, and the point in which the party exhibiting the bill of review conceives himself aggrieved by it.” Daniel, in his work on Ch. Pl. & Pr., marginal page 2064, gives the form of a bill of review. We omit the formal parts. He says, insert the original bill — recite the substance of answer — insert the recital (of facts) and decree. These directions come in parenthesis, after giving the formal parts of the bill. In 2 Barb. Ch. Pr. 561, is also a form given for such bill. Omitting the formal parts which he gives, he directs, parenthetically, insert substance of original bill — set out prayer verbatim — insert substance of answer — set forth decree. In Turner v. Berry, 3 Gilman, 541 — a case of bill of review, the court said : “There is another fatal defect in this bill, and that is, that it does not recite or give the substance of the record of the former suit. . . From the the very nature of the proceeding, it is manifestly necessary to state all of the proceedings in the original cause, except the evidence on which the court found the facts on which it proceeded to render a decree.”
Applying these principles, we do not think the bill in the
Affirmed.