Mayer v. Kornegay, 44 So. 839

Mayer v. Kornegay

44 So. 839 | Ala. | 1907

SIMPSON, J.

This was a petition by the appellant for the sale of the lands of his intestate for the payment of debts. A plea of res adjudicata was filed, showing that a similar petition had been previously filed, and, on hearing and after taking testimony, was by decree of the court dismissed. A demurrer to said plea was by the court overruled. The appellant then filed a replication, to which a demurrer was interposed, and the court sustained the demurrer. The assignments of error relate entirely to the action of the court in overruling the demurrer to the plea and in sustaining the demurrer to the replication.

*655The appellant insists that a dismissal is analogous to a non suit, and it is not res adjudicata. Tbe authorities cited refer to a voluntary nonsuit or dismissal, and have no application to a dismissal on bearing, which is more analagous to a dismissal on the merits by a court of chancery. The dismissal is a determination of the case on its merits. Civil Sode of 1896, § 168; Ford v. Ford’s Adm’r. 68 Ala. 141; McCalley v. Robinson’s Adm’r, 70 Ala. 432.

While it is true that the res adjudicata is as to the status at the time the former decree was rendered, yet the status is presumed to continue until facts are alleged and proven which have brought about a change in the status. — McCalley v. Robinson’s Adm’r., 70 Ala. 134. In the case of State ex rel. Craft, Adm’r. v. Williams, Judge of Probate, 131 Ala. 56, 30 South. 782, 90 Am. St. Rep. 17, a decree had been granted, on the application of the administrator, to sell the lands of the estate for the payment of debts; but no action was taken on it, and after some of the debts had become barred by the statute of limitations, the lands were sold on proceedings for partition among the heirs. Sube-quently the administrator de bonis non sought to revive the decree, and the purchaser was allowed to intervene for the purpose of resisting the motion to revive. The facts, as above stated, being alleged and proven, this court properly decided that the previous decree was res adjudicata as to the status at the time the decree was rendered, but that the facts alleged and proved showed that the status had been so changed that the necessity did not exist for the sale, and affirmed the decree of the probate court denying the revivor.

The replication in this case merely states that “there is now no personal property belong to said estate sufficient to pay the said debts.’ The replication does not *656allege facts from which the court could judge whether or not the status of the estate has been changed, since the former decree, as to authorize the court to grant the petition for sale. The demurrer to the plea was properly overruled, and the demurrer to the replication was properly sustained. The decree of the court is affirmed.

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