15 So. 2d 276 | Ala. | 1943
Lead Opinion
The evidence shows that appellee G. B. Hovater became a surety on the appeal bond of Leonard Hargett in the case of A. Albert against said Hargett for the purpose of appealing from a judgment rendered by a justice of the peace court, to the Circuit Court of Franklin County, and on the 4th day of May, 1938, judgment nil dicit was rendered against said Hargett and the sureties on said appeal bond for the sum of $91.53, and the costs of suit — $31.11. Albert caused a certificate of said judgment to be issued and registered in the office of the judge of probate of said county, on the 31st day of October, 1938, stating that the judgment was rendered on the 20th of June, 1938. The sufficiency of this registration to create a lien under §§ 584, 585, T. 7, Code 1940, is not questioned on this appeal. The existence of a certificate issued and registered in strict compliance with the statute is essential to the creation of a lien. Roney v. Dothan Produce Co.,
The evidence further shows that the appellee Hovater paid said judgment, and under the provisions of § 101, Code 1940, Tit. 9, was subrogated to the rights of said Albert, to enforce the same in the name of said Albert against the property of said Hargett. The lien attaches only to property of the judgment defendant which is subject to execution. Brock *648
Candy Co. v. Elson,
The utmost relief to which Hovater is entitled under the case made by the evidence was to enforce his lien against the undivided interest of said Leonard Hargett, in the lands described in the bill as the property of said joint owners or tenants in common, for the satisfaction of said judgment lien and the costs of suit. He is not entitled to have the lands sold for division among the joint owners, and said joint owners, other than Leonard Hargett, are not proper parties to the bill. The bill is without equity as to the other joint owners. Roy v. Abraham,
The trial court, to sustain the decree ordering a sale of the lands for division, invoked and applied the principle that with jurisdiction acquired for enforcing the judgment lien, the court may extend its decree to matters other than that on which the equity of the bill rests. Such auxiliary relief cannot be applied to parties who have no interest in the controversy and who are not proper parties to the bill. Equitable Mortgage Company v. Finley,
Hines et al. v. Chicago Building Manufacturing Company,
In the instant case the judgment lien does not invest the complainant with title, hence he has no estate in the land and is not a joint owner, and his judgment only attaches to the undivided interest of Leonard Hargett, which is subject to sale under execution issued in the name of Albert, or the lien may be enforced in equity. Code 1940, T. 13, § 1; Tierce v. Knox,
In such proceeding no benefit can come to the other joint owners and they should not be made to pay attorney's fees. Willingham v. Hood et al.,
The bill should be amended, if such amendment is permissible, so as to conform its allegations to the facts.
Reversed and remanded.
GARDNER, C. J., and THOMAS, FOSTER, LIVINGSTON, and LAWSON, JJ., concur.
Addendum
The opinion is corrected and the application for rehearing is overruled.
GARDNER, C. J. and THOMAS, BOULDIN, BROWN, FOSTER, LIVINGSTON, and STAKELY, JJ., concur. *649