16 Ala. 509 | Ala. | 1849
This cause was regularly submitted for a decree in the court below. The depositions were published and the cause being investigated by the chancellor, he decreed that the bill should be dismissed, as the infant heirs or child
It is not denied but that the infants are proper parties to the bill, which seems to have been very correctly framed, and to which they were made defendants, but it is insisted by the counsel for the plaintiff in error — 1st. That the 28th rule of chancery practice, under which the bill was dismissed, did not warrant the chancellor in thus dismissing it; and it is supposed that the rule only applies when there has been a total want of prosecution after filing the bill until the second term, of the court has elapsed. The rule alluded to deelares, “ that if the complainant shall not before the second term after filing his bill, have taken measures to bring in the defendant, his bill shall be dismissed.” — Clay’s Digest, 615, § 28. The plain object of the rule was to avoid delay, and to compel complainants to have their causes ripe for hearing by the second term, at least so far as to have taken measures for bringing in defendants. This object would be defeated if the taking measures to bring in one of several defendants should relieve the party from the operation of the rule in respect to others ; or if he could obtain an exemption by resorting to measures to bring in the parties not recognised by law, or the practice of the court, and which prove ineffectual. The rule is a salutary one, and if properly enforced, will, in my judgment, contribute much to relieve the courts of chancery of the complaints too often with justice urged against them, of delays in their proceedings. The rule should not therefore be lightly regarded. The bill in the case before us was filed on the 9th day of March 1843; it was dismissed on the 17th day of July 1848. Here then was the lapse of more than five years between the time of the commencement of the suit and the period when it was brought to final trial. Certainly the complainant had ample time to prepare it for hearing, and to have brought the parties, who were known to him to have been necessary^ when he filed his bill, properly before the court; and if he has failed to do this, it is in our opinion entirely correct that the chancellor should have dismissed his bill.
The complainant then in the court below went into the. trial before his case was ripe for hearing; necessary parties, parties who in the event of a decree, must contribute to its satisfaction, and whose effects were sought to be condemned by the bill, were not before the court, and no regular decree could have been pronounced by the court in their absence. In this posture of the case, the court was either bound to proceed and try the cause and render a decree against the parties before it, which would have been clearly irregular, or to continue the cause for another year, when it had already been, as we have stated, continued for more than five years, and when the defendants, for aught that appears of record, had the clear right to have it finally disposed of, or to dismiss the cause from the docket for want of prosecution as to the infant defendants, as was done. We feel no hesitation in saying that the chancellor pursued the correct course.
It is certainly true that the objection for improper parties, or the want of parties, must be taken before the final trial, or the court will not dismiss the bill, but order it to stand over, if the omission of the complainant has not been fraudulent or wilful, that the proper parties may be made and brought before the court either by amended or supplemental bill. Rugely, et al. v. Robinson, 10 Ala. Rep. 702; Alderson v. Harris & Merrill, 12 Ala. Rep. 734. In this case, however, the defendants could taire no advantage of the failure of the complainant to bring in the infant distributees of Wood otherwise than by motion to dismiss, for the bill prays process against them, and that they be made defendants. It is unlike those cases where hew parties are to be brought before the court, and who are discovered pending the progress of the cause. These parties being necessary (Julian, et al v. Reynolds 8 Ala. Rep. 680) and known to be so by the complainant when he filed his bill, and no reason appearing why the complainant had not brought the parties defendants properly before the court, we think after the lapse of so long a time, and after he has submitted his cause for final decree, then to keep the defendants a year longer before the court until the infants can
Let the decree be.affirmed.