87 Ala. 387 | Ala. | 1888
In the year 1859, Jeremiah Smith obtained a decree in the Chancery Court of Randolph county divorcing him from M. E. Smith. This decree allowed M. E. Smith one hundred dollars per annum as alimony. Soon afterwards, M. E. Smith removed to Texas, where she died in 1867, only one installment of alimony — that for the year 1860 — having been paid. In 1872, the death of M. E. Smith not being known to her attorney in Alabama, executions were issued, and the amount due on the decree for alimony was collected by the sale of Jeremiah Smith’s property. While the money was in the hands of the sheriff, W. J. Borden claimed the fund as M. E. Smith’s administrator, and W. H. Smith, insisting that she was still in life, claimed that the fund should be paid to him as her attorney. The sheriff, W. J. Alexander, being unable to determine for himself to which of these claimants he should pay the fund, filed his bill in the Chancery Court of Randolph, offered to bring the money into court, and prayed that Borden, as such administrator, and W. II. Smith be required to interplead in respect to it, and that he be discharged. A decretal order was made, directing the fund to be paid into court, and, on motion of W. H. Smith, it was paid to him pending the litigation.
In 1875, a decree was entered, requiring Borden and W. H. Smith to interplead. During the further progress of the cause, Jeremiali Smith was made a party on his own petition, without objection at the time; and upon the final hearing, it was decreed, that the complainant, Alexander, was entitled to a part of the gross sum, for his counsel fees and expenses in and about the litigation; that Borden, as administrator of M. E. Smith, deceased, was entitled to that part .of the money which was collected as alimony for the years prior to her death; that out of this fund W. H. Smith should be allowed to retain a certain sum, as counsel fees for services rendered by him to M. E. Smith in her life-time; that Jeremiah Smith should be paid the remainder of the fund; and it was also decreed that W. H. Smith should pay interest on the money while it was in his hands. From this decree he prosecutes an appeal to this court; and assigns as error (1) that the court below overruled his motion to strike
An objection to his admission, or a motion, seasonably made afterwards, to dismiss him, should have prevailed; but, to so dismiss him after he had come in without objection, and been recognized- as a proper party until all other remedies he might have had, for the assertion of his unquestioned rights in the premises, had been barred by the lapse of time, would be in the highest -degree inequitable. The chancellor was clearly right in refusing to do so.
Affirmed.