Moore v. Murrah, 40 Ala. 573

Moore v. Murrah

40 Ala. 573 | Ala. | 1867

BYRD, J.

1. The heirs of Amos B. Murrah, deceased, are necessary parties defendant, in order to entitle appellant to the relief he seeks. — Story’s Eq. Pl. § 177 a.

2. Pc does not appear that the infant heirs of Murrah were served with process, or that a guardian ad litem was appointed to make defense for them. The submission of the cause was, therefore, premature. The chancellor could have set it aside, and required them to have been made parties, according to the rules and practice of the court. But this is a matter of discretion, which this court will not review. The court is not bound to protect a party against the consequences of a premature submission of his cause. As it was discretionary with the court to set aside the submission, or to dismiss the bill on account of the failure to make the infant heirs of Murrah parties, the decree of the chancellor cannot be reversed and remanded. In our opinion, the chancellor should have' dismissed the bill without prejudice to appellant. Without intimating any opinion on the merits of the cause, he may be entitled on another bill to some remedy under the authority of the case of Goodwin v. Lyon, (4 Porter, 297,) if not to a specific performance of the contract set out.

3. There is an agreement of counsel, endorsed on the record, by which they agree to waive all irregularities, and to try the case upon the merits of the decree and testimony. This agreement cannot aid the defect alluded to. ■ If the chancellor properly dismisses a cause, no subsequent agree*576ment of counsel can put him in error. Nor do we think it proper to pass upon the merits of the cause, in the absence of any one authorized by law to represent the infant heirs of Murrah.

"We will reverse and render a decree according to the practice of this court in such cases. The following entry will be made : It is ordered and adjudged, that the decree of the chancellor be reversed, and that the bill be dismissed without prejudice, and that appellant pay the costs of the court below, and that he and his surety for the costs of the appeal pay the costs of this court.