Rhea v. Tucker, 56 Ala. 450

Rhea v. Tucker

56 Ala. 450 | Ala. | 1876

STONE, J.

In Waller v. Sultzbacher, 38 Ala. 318, we said: “One of the conditions, upon which the defendant obtained the continuance at the fall term, 1860, was, that if the costs were not paid, in ninety days after the adjournment of the court, the defendant’s plea should be stricken from the file, and the plaintiffs have judgment by nil dicit, with inquiry. The defendant did not question the right of the court to impose these terms, but accepted the same. The order of the court became thereby an agreement of record between the parties, and the defendant can not complain that it was enforced against him. The record shows that the costs were not paid within the ninety days; and accordingly the court did not err in striking the defendant’s plea from the file, and giving the plaintiff judgment by nil dicit.”

The rule declared above has been announced, in substance, in many of the decisions of this court, on that and kindred questions. They rest on two well-recognized principles: the power of the court to impose conditions, in promotion of the ends of justice, on which it accords the exercise of discretionary powers; and the binding efficacy of agreements, entered of record, which are implied from the acceptance of the order, with the conditions annexed. Section 877 of the Bevised Code declares, that “ an attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such cause, made in writing, or by an entry to be made on the minutes of the court.” — See Stephenson v. Mansony, 4 Ala. 317; Stephens v. Brodnax, 5 Ala. 258; Reese v. Billing, 9 Ala. 263; Walker v. Hale, 16 Ala. 26 ; Edwards v. Lewis, 18 Ala. 494; Gowen v. Jones, 20 Ala. 128.

We are aware that, in what we have said above, we are treading on delicate ground. Discretionary powers may be abused. Still, they do, and must exist; and there is rarely any redress for their abuse. The safety of the public does, and must, rest in the strong sense of the right, which should always preside in such ministrations.

The present is a suit in chancery; and the chancellor, at the July term, 1872, granted to the defendant, W. H. Ehea, a continuance of the cause, and further “ ordered and adjudged that the respondent W. H. Ehea pay all the cost now due in *454this cause, * * * and that the payment of the cost by the said W. H. Rhea, before the next term of this court, is hereby made a condition precedent to his making further defense to complainants’ suit.” The defendant accepted the continuance, and must be held to an implied agreement to observe, keep, and submit to the conditions therein imposed. We can perceive no reason for laying down a rule for the construction and enforcement of conditions imposed in granting continuances in chancery, other and different from the rule as to conditions in continuances at law, declared in Waller v. Sultzbacher, supra. We, therefore, hold that, in refusing to allow W. H. Rhea to defend further, because he had failed to pay the costs, as required by the chancellor’s order of continuance, the chancellor did not err.

2. It is objected for appellant, that the decree of the chancellor, granting relief to complainants, was founded on depositions, given on interrogatories propounded, of which neither W. H. Rhea, nór his solicitor of record, had any notice. The record fails to show that notice of the interrogatories was given. The record shows that such notice was given to the other defendants, who had answered the bill; and nothing found in the record discloses why W. H. Bhea was not notified, or that the question of such failure was called to the attention of the chancellor. No motion was made below to suppress the depositions, or to disallow them as evidence against W. H. Bhea. Having been adjudged in contempt, and denied the right to be heard in defense on the final trial, this would probably excuse him for not moving then to suppress. But, if he was entitled to notice, and had neither received nor waived it, the question arises, why did he accept such onerous terms, as a condition of continuance? It will be remembered that order was made at the July term, 1872. He had been previously allowed to answer, and bis answer bad been filed. He was not then in contempt. As the facts appear in this record, he could have bad the complainants’ testimony suppressed, for the want of notice to him of the filing of the interrogatories, unless there was some reason, not disclosed, why he was not entitled to notice. The testimony of complainants suppressed, they, the complainants, would have been forced to move for a continuance, that they might retake their testimony. This would have relieved W. H. Rhea of the burden of the continuance, and its conditions.

Without noticing other answers, which might probably be made to this objection, we think it is enough to say, that we will not consider this objection, when made in this court for the first time. If it be said W. H. Bhea had been denied *455the right to make defense, and therefore could not make the objection in the Chancery Court; the answer is, that such his disability was brought about by his own laches, and hence he can not be heard to complain that he was there disbarred; nor be allowed to urge objections here, which would be denied to parties who had observed and obeyed the orders of the chancellor. To hold otherwise, would be to offer a premium for what the law calls contempt of one of the superior courts of the commonwealth.

3. We think the testimony in this record is sufficient to justify the finding of the chancellor, that Mrs. Lydia Tucker and John I. Tucker are entitled to the relief they severally pray; and such proof, if clearly made out, need not be in writing. — Andrews v. Jones, 10 Ala. 400, 420; Mosely v. Lane, 27 Ala. 62.

4. There is one error in the decree in this cause, which compels its reversal This suit was commenced by parties in possession, to have a trust declared in their favor, and to obtain title to certain interests in the lands described in the bill. The interest claimed is an interest in the realty. When Mrs. Tucker died, her interest descended to her heirs, and did not pass to her personal representative. No title can properly be decreed to him. True, under our statutes, the administrator is clothed wdth certain powers as to the realty, but this gives him no right to have the title decreed to him. He can only assert the powers conferred by the statute. Proof that Mrs. Tucker was entitled to two-eighths (or one fourth) of the land, will not, per se, uphold a decree of two-eighths to her administrator. Her heirs alone can claim and recover the title. Jacob Tucker has made conveyances, with covenants of warranty. Whether the purchase-money has been paid to him in full, the record does not inform us. We are not sufficiently advised on these several matters to determine who is entitled to the part which descends to him. We say descends, for the record says nothing of a will by Mrs. Tucker.— Rev. Code, § 1888; Delony v. Walker, 9 Porter, 497; 1 Brick. Dig. 594, § 28; Stewart v. Anderson, 10 Ala. 504; Carpenter v. Chaudron, 21 Ala. 72 ; Kennedy v. McCartney, 4 Porter, 141.

The decree of the chancellor is reversed, and the cause remanded, to be proceeded in according to the principles of this opinion.