Smith v. SmithSmith v. Smith
- Reporters:
- , ,
- Before:
- Gardner
Thе bill in this cause was filed by the complainant against the respondents, seeking a sale of certain real estate therein described for division’ among the parties to the suit as tenants in common. The bill was filed May 8, 1920, and on June 1, 1920, respondents Carl and Bessie Cline and Floyd Cline Evans filed an answer thereto. On June 4, 1920, the bill was amended in material respects, and on June 1, 1920, answer wаs filed by another respondent, Harley Force, and on Junе 7th thereafter respondent A. J. Smith filed his answer, where- ■ in he claimed title to the entire property. The bill was again amended in material respects on January 14, 1921. The guardian ad litеm was appointed for respondent Roy Smith, a minor, and аnswer filed by such guardian on January 18, 1921. On September 3, 1921, the bill was again amended so as to meet the answer of respondent A. J. Smith by setting .up certain facts not necessary now to note and alleging that the deed of said respondent was obtained by the ‘exercise of undue influence, and it was sought to bе canceled. The bill, therefore, as last amended, wаs one seeking, for its prime object, a sale of land therein described, for division among tenants in common, and a сancellation of the deed to A. J. Smith as incidental, and fоr the purpose of making the partition more effeсtive. Long v. Long, 195 Ala. 560, 70 So. 733.
In January, 1923, decrees pro confesso were entered by the register against respondents Simmons, Atkins, and Lita Belle Smith. Evidence was taken by deposition and the cause was submitted for final decree on pleadings and prоof as noted, and a decree rendered dismissing the bill. From this decree the complainant has prosecuted thе appeal.
In filing the amendments to the bill, the complainant failed to observe the provisions, of the act of September 22, 1915, regarding notice to the respondents аs therein required. Gen. Acts 1915, p. 706; Farmers’ State Bank v. Inman, 208 Ala. 281, 94 So. 105; Farmers’ State Bank v. Inman, 207 Ala. 284, 92 So. 604.
*133 The bill as lаst amended was not answered by several of the respоndents, nor was decree pro eonfesso entered against them. There was no answer filed to the bill as amendеd by the guardian ad litem for the minors. The decree appears to rest upon a consideration of the cause upon its merits. But the court should not have decreed upon the cause in the condition of the record as аbove disclosed, as it was not properly at issue. The рroper course for the court to have pursued undеr these circumstances was to set aside the submission, so that the cause may be prepared for submission, and if the court was of the opinion the complainant was at fаult as to failure to have the case properly аt issue when it was submitted, such terms could have been imposed аs might be considered proper. Darling v. Hanlon, 197 Ala. 455, 73 So. 20.
The decree rendered upon the merits while the cause was not at > issue was error. It will be here reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.
Reversed and remanded.
ANDERSON, O. J., and SAXRE and MILLER, JJ., concur.