McGlathery v. Richardson Bros. & Co., 129 Ala. 653

129 Ala. 653 | Ala. | 1900

DOWDELL, J.

If the restraining the execution of the decree rendered by the court in which the present bill is filed had been the sole purpose of the bill, then the-proper practice in obtaining the relief sought, would have been, not by original bill, but by filing a petition. The reasons for this practice are fully stated in the cases, of Wright v. Phillips et al., 56 Ala. 69, and Haralson v. George, Ib. 297. But the present bill had for its purpose also, the impeachment of the decree in the former suit,, for fraud in its procurement and rendition. Where the integrity of the decree itself is involved and the relief sought is its annulment on the ground of fraud in its procurement, the proper proceeding is by bill and not by petition; since the court, after final adjournment, is. without the power to alter, modify or set aside its decree,, otherwise than upon a bill of review, or original bill upon the ground of fraud. And this latter upon the theory that fraud vitiates the most solemn contract or proceeding. The present bill, however, is not only deficient in definiteness and particularity in its allegations of fraud, but is also wanting in necessary parties. In a bill of' this character all of the parties in the decree ussailed,, have a right to be heard, and are necessary parties, and should be brought in either as complainants or respondents as proper pleading may require. “A decree cannot be set aside upon the ground of fraud or for any other cause without having all the parties to the -decree; before the court.” — 2 Beach Mod. Eq. Prac., § 873. In the note it is -said: “In the vast multitude of authorities, none are found to the -contrary.” This was not done in the present case, and the 'Chancellor on the final submission of the cause on the pleadings and proof might have properly dismissed the bill ex moro mota for this reason.

The object and purpose of the cross-bill was to meet the theory of the -original 'bill in its attack upon the decree, which had -been rendered in the city court of Decatur against complainant and her husband, F. S. MfeG'lathery;' and • in ■ the’ 'event - the decree assailed should be held'void as-to -the -complainant in the'original bill, in the present suit, ■ then to- subject the fund here in question, as the property of F. S. McGlathery, and to- that end the' transfer from F. S. McGlathery to the cómpl-ainánt is attached by the cross-bill as. being-fraudulent. ■ The equity,' therefore, of the cross-bill is a -dependent, and' not an independent one-. The dismissal of the oiuginal bill left the decree assailed, and upon which' the garnishment issued, "unaffected. As this -decree was -against both F. S. and D. R. McGlath-ery,' and the. garnishment process ran -against both, it is immaterial to which one of them the fund garnish.ed belonged. The equity of the -cross-bill being dependent upon the original 'bill, the dismissal of the original hill carries the cross-bill with it ■

' Although the chancellor in hi-s " opinion - accompanying the -decree limy have assigned the 'wrong reason for dismissing -complainant’s bill, yet, -as we'have -stated 'above, the bill was properly ’dismissed for.want o-f necessary parties. • ■

- The -decree will he affirmed a-s to-the dismissal of the original' bill,' and reversed as to that part granting relief to cross-complainants, and a decree here rendered dismissing the cross-bill.