Hoffman v. Sewell

42 So. 556 | Ala. | 1906

McCLELLAN, J.

— Appeal from a decree denying mo-

tion to dismiss for want of equity and overriding demurrers. In our opinion the appellees have mistaken the method of their remedy, which should have been by petition in the pending case, to which they are respondents. Where the object is to' prevent the execution of a decree because of matters outside of, though relatd to, the case in which the decree was rendered, the proper method is by petition for a restraining order, or an order to suspend proceedings in the cause,, upon security given.—Wright v. Phillips, 56 Ala. 69; McGlathery v. Richardson, 129 Ala. 657, 29 South. 655. All courts possess the inherent and necessary power to prevent the abuse of their acts and process.— Larkin v. Mason, 71 Ala. 227.

The bill in the case at bar makes no case for the cancellation of the decree assailed. Whatever may haire been the effect of tbe engagement by Hoffman and Mc-Williams with Peavey to dismiss the cause, the failure to accomplish it before rendition of the decree, the cause then being on submission for decree in vacation by consent, cannot avail to annul the solemn judgment of the court. The register was without authority, had he so attempted, to dismiss a pending cause then in the breast of the chancellor. The conveyance to Peavy by Hoffman and McWilliams, quitclaiming their interest in the realty in question'had no effect, in and of themselves, to withdraw the cause from the jurisdiction to which it had been committed, and of which committal Peavy had actual knowledge.

It follows, from these considerations, that the motion to dismiss should have been granted. The decree is reversed, and one is here rendered dismissing the bill, without prejudice.

Reversed and rendered.

Tyson, C. J., .and Dowdell and Anderson, JJ., concur.