128 So. 443 | Ala. | 1930
This is the second review touching the same subject-matter and the same parties. Kelly v. Carmichael,
The petition is for writ of common-law certiorari to review the action of the trial court in rendering decree in equity. The substance of the petition is that the cause was submitted for decree, by the respondent in the original cause, over the objection of complainant, after interrogatories were filed and served on respondent, and before answer; and petitioner also seeks "protection against the erroneous charge against her of attorney's fees in a lump sum for all services rendered in this case by respondent's solicitor, and also all court costs." Thus is stated, by petitioner's counsel, her effort at correction and review of the action of the lower court.
It is true that a judgment rendered without jurisdiction of the subject-matter or of the parties is coram non judice. L. N. R. Co. v. Tally,
The rule is well stated in Blount County Bank v. Barnes,
In Jackson Realty Co. v. Yeatman,
It is further established, that a decree is void if rendered without a submission of the cause for final decree, before answer and without decree pro confesso, and was therefore not at issue and not ready for submission for a final decree. Durr v. Hanover National Bank,
Therefore, is the judgment rendered void if submission of the cause is prematurely taken by the court over the objection of a party when the adverse party has not answered interrogatories duly propounded? The provisions of section 6570, Code of 1928, are cumulative to the right of discovery in courts of equity, though answer under oath has been waived in the bill. Rosenau v. Powell,
The statute gave complainant the right to testimony of respondents, though interrogatories were not included in her original bill, and although she had waived answer thereto under oath. The interrogatories were propounded after answer was filed by respondents. The amendment to her bill, after decision reported in
The immediate proceedings to the decree are thus stated in the petition:
"8. That on April 24, 1929, Complainant propounded interrogatories to respondent W. M. Carmichael under the statute; a copy of said interrogatories is hereto attached as Exhibit 6 and made a part hereof. Complainant alleges that said interrogatories have never been answered.
"9. That on, viz: April 25, 1929, Complainant made a motion for a decree pro confesso against respondent R. G. Allen, which motion was granted on the same day. A copy of said motion and of said decree pro confesso are hereto attached as Exhibits 7 and 8 and made a part hereof.
"10. That on, viz: April 26, 1929, Complainant moved the Court to strike from the answer of respondent W. M. Carmichael the part of the same relative to the exercise by Complainant of a statutory right of redemption. A copy of said motion, filed on April 25, 1929, is hereto attached as Exhibit 9 and made a part hereof. And Complainant alleges that motion is still pending in the Circuit Court, the same being ignored by the Chancellor, and that no decision has been made thereon.
"11. That on the same day, to-wit: April 26, 1929, respondent W. M. Carmichael moved the Court to order a reference to ascertain the amount necessary to redeem the property involved from the foreclosure of the mortgage. A copy of said motion, endorsed filed on April 25, 1929, is hereto attached as Exhibit 10 and made a part hereof.
"12. That on July 20, 1929, a decree was rendered in said cause, ordering a reference. A copy of said decree is hereto attached as Exhibit 11 and made a part hereof.
"13. That on July 24, 1929, the reference was held by the Register and report made by him on the same day. A copy of said report, including the testimony taken as reported by the Register, is hereto attached as Exhibit 12 and made a part hereof.
"14. That on July 25, 1929, Complainant filed exceptions to said report, a copy of said exceptions being hereto attached as Exhibit 13 and made a part hereof.
"15. That on July 26, 1929, Complainant moved the Court to set aside the decree of reference and to expunge the same from the record. A copy of said motion, filed July 26, 1929, is hereto attached as Exhibit 14 and made a part hereof.
"16. That on August 26, 1929, a final decree was rendered in said cause overruling complainant's motion to set aside said decree of reference and overruling Complainant's exceptions to the Register's report, and allowing Complainant ninety days within which to redeem from the mortgage foreclosure sale, failing in which her bill of complaint to stand dismissed at her cost."
It should be further stated that the former proceedings in this court show that complainant's original bill was filed on March 30, 1927.
Respective counsel agree that appeal will not be from a void decree or judgment. Gartman v. Lightner,
At the time of the reference the attorney for complainant, petitioner here, was present, and had the opportunity to examine the respondent and his witness, and also the right to introduce such evidence as she desired. All the parties were before the court and had the opportunity to elicit the facts called for in interrogatories so lately filed in the cause. This she did not do, or seek to do. With the evidence before the court, the register found and reported, as indicated in the report, in favor *342 of the respective parties, as indicated. It was to the effect that respondent owned the notes and mortgage when the bill was filed, and "he still owns the same;" that the amount justly due respondent, principal, interest and taxes, is the sum indicated in that report, and that an additional sum as "reasonable fee" for the services of the solicitor for said respondent was that indicated in the decree; and stated the aggregate or total sum.
The exceptions to the register's report were to the allowance of attorney's fee that is alleged to have been "an irregular charge against complainant," for reasons stated in the exception; that the reference was premature in that "no submission of the cause was made on that date;" that "the decree of reference was based on a motion of the Respondent Carmichael which bears no filing date and purports to be, and is, a motion for a reference to ascertain the amount necessary to be paid to redeem the property involved in this suit from the foreclosure of the mortgage, and at the time said motion was made and acted upon, on, to-wit: April 26, 1929, and July 20, 1929, respectively, the statutory right to redeem from said mortgage foreclosure was not an issue in the case, complainant having amended her bill long prior thereto by striking therefrom all such matters as pertained to the statutory right of redemption in obedience to the decision of the Supreme Court in this case that there was no equity in that phase of the bill. * * * That said reference was not authorized." Respondent Carmichael filed his answer to the bill on April 4, 1929, and on April 12, 1929, he made a motion to set said cause for final hearing. No testimony had been taken. On April 24, 1929, complainant filed interrogatories to respondent Carmichael, and on April 26, 1929, complainant made a motion to strike from respondent Carmichael's answer to the bill as last amended all that pertained to the statutory right of redemption, and her solicitor orally argued the said motion, as well as the motion for reference made on the same date by Mr. Howze for respondent Carmichael. Further exception was: "The Court has not acted upon Complainant's motion to strike, nor has respondent Carmichael answered the interrogatories propounded to him by Complainant. Wherefore said reference was not authorized."
Complainant had theretofore, and prior to the submission of the exceptions, moved to set aside the decree ordering said reference on the ground that there was no submission for final decree, and there were motions pending and undisposed of, one by respective parties. It is averred as to this:
"Said two motions were submitted together after having been set down for submission by the Attorney for Respondent and the same were argued and considered by the Court and held under consideration for quite a time and never decreed upon unless the decree in this case ordering the reference can be considered a decree upon said motion, and Complainant charges that no final decree could be rendered under either of said motions and that there was no submission at any time made for final decree and no testimony had been taken but interrogatories were filed to respondent W. M. Carmichael and served and not answered and that the reference held thereunder is void."
And the decree thereon was:
"It is accordingly ordered, adjudged and decreed by the Court that the motion of the Complainant to strike from the file the Decree of Reference heretofore rendered be and the same hereby is overruled.
"The cause being then submitted upon motion of the Respondent to confirm the Report of the Register filed herein on the 24th day of July, 1929, and upon the exceptions to said report filed by the Complainant, the Court is of the opinion that the exceptions to the Report of the Register are not well taken and should be overruled and the Report of the Register should be confirmed.
"It is therefore further ordered, adjudged and decreed by the Court that the exceptions of the Complainant to the Report of the Register filed herein on July 24, 1929 be and the same hereby are overruled and the said Report of the Register be and the same hereby is in all things ratified and confirmed."
The decree upon the merits was as follows: "It appearing to the Court from the answer filed by the respondent Carmichael that he is willing to allow a redemption of the property described in the bill of complaint from the foreclosure of the mortgage heretofore had under the power of sale contained in said mortgage, upon the payment to him of the amount of his indebtedness and it appearing from the Report of the Register that the amount of the indebtedness due the said Carmichael is the sum of thirty four thousand two hundred and two 71/100 ($34,202.71) Dollars including interest to the date of the rendition of this decree, a reasonable Attorney's fee and the taxes expended by the said Carmichael; it is further ordered, adjudged and decreed by the Court that the Complainant pay or cause to be paid into the Registry of this Court for the use and benefit of said Carmichael said sum together with interest thereon from this date to the date of such payment, and in the event the said complainant fails or refuses to pay said sum within ninety days from this date it is ordered that her bill of complaint and this cause shall stand dismissed from the dockets of this Court at the cost of the complainant for which execution may issue." And it was a final decree and would support an appeal. DeGraffenried v. Breitling,
It may be well to say of the nature of the writ applied for, that it is extraordinary, and for the supplying of defects of justice in cases obviously entitled to redress and unprovided for by the ordinary forms of proceedings. Lamar v. Marshall County Commissioners Court,
It is the rule in this jurisdiction that common-law certiorari is not a writ of right, but its issuance rests in the sound discretion of the court, and will not be employed to correct mere irregularities in proceedings. Wright v. Court of County Commissioners,
There is no insistence that the court did not have the jurisdiction of the subject-matter and all the parties at interest therein; and this is shown by the record. Bruce's Ex'x v. Strickland's Adm'r,
The right of appeal being available, the writ of certiorari will be denied, though the record shows the irregularities indicated, a decree, before interrogatories were answered. The fact that interrogatories in chancery, under sections 6570, 6573, Code of 1928, are in the nature of a substitute for a bill of discovery (Calvert v. Calvert,
Writ denied.
SAYRE, BROWN, and FOSTER, JJ., concur.