Turner v. TurnerTurner v. Turner
- Reporters:
- , ,
- Before:
- Sayre
We consider first the error assigned against the former decree which goes upon the ground that the bill there stated” no cause of action in equity against this complainant. The bill was this, in effect: Joe Turner, complainant, and Howard Turner, the original defendant, had received a joint deed conveying to- them a tract of land in Lowndes county. To secure the purchase money they had given their four joint promissory notes, Howard had failed and refused to- pay his half of the indebtedness, and complainant had thus been compelled to pay the whole. There was in the bill no specific aver*427ment of vendor’s lien or mortgage, nor was there any specific claim of a right of subrogation eo nomine. The prayer of the bill was that a lien be decreed on defendant’s undivided interest in the land, that for its satisfaction defendant’s interest be sold, and for general relief. Pending the suit defendant died, and there was an order of revivor against his widow and minor children, of whom the complainant in this bill was one; she being less than one year of age. Thereafter the infant defendants were represented by a guardian ad litem of the court’s regular appointment after service had in accordance with the statute in such cases made and provided.
The contention advanced by the bill of review is that the former bill showed nothing more than an effort to enforce a personal debt against Howard, and that when he died all basis for a decree was gone without a revivor against his personal representative — this, for the alleged reason that there was in the bill no basis of equitable relief against this complainant and the other heirs of the deceased, since they were not liable for his debt and no lien was set up against their inheritance— this, in the effort to work out a theory that the proceeding was lacking in due process and the decree void, for that the point decided was not within the substance of the litigation proposed by the bill.
From the foregoing considerations, establishing the jurisdiction of the court as upon a sufficient bill, and from the fact that the • complainant in’ the present bill is not shown — could not, without a resort to the evidence in the previous cause, be shown — -to have suffered prejudice in the determination of the amount of the indebtedness, it results that the failure to bring in the personal representative was not error to work a reversal on a bill of review. — McCall v. McCurdy, supra.
The recitals of the record are: “January 27, 1896. Testimony ordered published and cause submitted on pleadings and proof for decree in vacation.”
And at the July term, 1896, the following: “July 27, 1896. Continued under former order of submission, the file -to be forwarded to the chancellor by the 10th of February next.”
In the bill for review it is averred that there was no entry on the minutes of said court for the term held in January, 1896, nor at the July term, 1896, of any note of testimony in said cause, but that there is found in the file of said cause a paper purporting to be a note of testimony: Here the bill sets out a regular note of testimony, certified by the register as of the 27th day of July, 1896, and marked by him filed on the same day. April 3, 1897, the chancellor decreed as follows: “This cause was submitted on pleadings and proof, in term .time, for consideration and final decree in vacation, and is argued and heard on such submission. On consideration, which is confined to’ the legal evidence in this cause, it is ordered, adjudged, and decreed that the complainant is entitled to relief. The register is directed to ascertain and report what is due the complainant for the moneys he paid for the land described in the bill, the same being one-half of. the amount of the purchase notes shown in exhibits, with interest thereon. He will *431give the parties due notice of his proceeding hereunder and will report in vacation.”
The bill here avers: “That said note of testimony, .after said cause had been submitted and after the adjournment of the court, was fraudulently enrolled on the book containing the minutes of said court without any date to the entry.”
No importance is to be attached to the averment that the note of testimony was “fraudulently enrolled.” Fraud is not made a ground of the bill; and if it were so intended, it is wholly insufficient as a bill to impeach the decree for fraud in its concoction. The bill is a bill of review for error apparent, and nothing else. In such a bill the entire record must be shown, and, when shown, speaks for itself. The averment in question is merely thrown in for color, and can be taken to mean only that there was no evidence the chancellor could lawfully consider, for the reason that there was no compliance with the rule in regard to’ a note of testimony. It may be conceded that it is competent for the Legislature to convert an error of form into a fatal defect, vitiating a decree even after the jurisdiction acquired, that the rule has the force and effect of a statute, and that it is both mandatory and prohibitory,, excluding from consideration any testimony not so, noted, though the testimony may be found among the papers in the cause. The effect of the rule is by reference in the note of testimony to make a record of the evidence in substitution for that afforded by the ancient practice of the chancellors of reciting in their decrees at length the entire pleadings and the substance of the evidence contained in the depositions. — Fletcher’s Eq. Pl. & Pr, § 718. It serves the purpose besides of bringing to, the chancellor’s attention the evidence upon which the par*432ties rely, and upon appeal to give this court indubitable information as to the evidence taken into consideration by the chancellor in arriving at the conclusion stated in his decree. And it is the rule of decision in this court on appeal to reverse decrees Avhen the evidence on Avhich they must have been based is not noted as the rule of practice requires. — Reese v. Barker, 85 Ala. 5 South. 305; Harn v. City Council, 100 Ala. 200, 14 South. 9; Tatum v. Yahn, 130 Ala. 575, 29 South. 201; Sellers v. Farmer, 147 Ala. 448, 41 South. 291. It is granted without reserve that a decree establishing and enforcing against adult or infant a liability absorbing much of his estate, without giving him an opportunity to be heard and Avithout proof of the existence of the liability, would not be entitled to respect as a judicial determination of his rights. But it has not as yet been decided that a decree rendered upon testimony duly noted so far as concerns the original notation, though not entered upon the minutes, deserves to take rank as an act wholly lacking in authority, or even that the failure of the clerical officer of the court to enter a memorandum of the testimony upon the minutes constitutes a defect of substance requiring a reversal on a bill of revieAV for error of substance apparent. But, however questions of that extreme character may be decided when they arise, they may be pretermitted in this case, for Ave are of opinion upon the record here that a substantial compliance Avith the rule is shown. On the record it appears that there was a note of testimony and that it Avas recorded upon the minutes of the court. This note of testimony bears the date of the day of the last submission, and as matter of fact there is no reason Avhatever for supposing that the chancellor had it not before him when he came to make his de*433cree. He considered the evidence; his decree so recites, and otherwise he could not have rendered the decree for complainant in that cause. True, the pleader in this case avers that the note of testimony was enrolled upon the minutes after the adjournment of the term; but it was filed and became a paper in the cause on the day of the submission, the cause was held for decree in vacation as the statute permits and as is the common practice of chancellors, and the decree was rendered months afterwards. The only consideration of any importance was that it should be placed upon the permanent records of the court, and this the chancellor might have ordered at any rate before his decree was drawn into question. It was recorded, and if we felt inclined to go to the extreme length of holding that the chancellor was without power to make a decree on the evidence prior to its recordation, still the presumption must be that it was recorded in advance of the decree, for it is not averred, nor does the record show, that it was recorded afterwards. If we should hold that the circumstance of a delay beyond the term involved delay beyond the decree, and so find error of substance, we would find such error, not upon the face of the record, but as the result of a wanton assumption of fact dehors the record. We therefore hold that no error of substance in that regard has been made to appear.
This, if not the better, is rather a common practice; and since the purchaser took title subject to confirmation by the court, it is impossible to see that the inverted order of the proceedings visited any injury upon the defendants, or any of them. The decree confirming the sale, as for this alleged error, would have been affirmed on appeal.’ — Simmons v. Jones, 84 Ala. 3 South. 895. There is more reason why it should not be reversed on a bill of review. — Ashford v. Patton, 70 Ala. 479; Jordan v. Hardie, 131 Ala. 72, 31 South. 504; Vary v. Thompson, 168 Ala. 367, 52 South. 951.
In this connection this complainant quotes from Bank of the United States v. Ritchie, 8 Pet. 128, 8 L. Ed. 890, where the bill was in nature.of a bill of review, as follows: “It is a fatal error in the decree that it directs the conveyance to be made on the payment of the purchase money, without directing that the sale shall first ‘be notified to and approved by’ the court.”
But let the facts in that case and the statute under1 which the court was acting be observed before finding in it a precedent to be followed in the case at bar. The decree there under review had been procured at the suit of creditors against the heirs at law of Richie, a *435deceased debtor. Since complainant here places great store by the opinion in that case on the question now under consideration, and as well on that to’ which we shall next come, we will at this point quote enough of the text leading immediately up to the quotation with which complainant has favored us to show the true purport and effect of the decision. The court, speaking of the proceeding under review, said: “The justice of the claims made by the complainants is not established otherwise than by the acknowledgment of the infant defendants in their answer that, ‘according to the belief and knowledge of their guardian, they are, as alleged in said bill, respectively due.’
- “The court ought not to have acted on this admission. The infants were incapable of making it, and the acknowledgment of the guardian, not on oath, was totally insufficent. The court ought to have required satisfactory proof of the justice of the claims, and to have established such as were just, before proceeding to sell the real estate.
• “Without knowing judicially that any debts existed, or the amount really due, or the value of the real estate, ‘the court directed ‘that the real estate of the said Ritchie, or such part thereof as may be necessary for the purpose, be sold, for the payment of debts of said Ritchie to complainants, and to such other creditors of said Ritchie, as shall come in and bear their proper proportions of the costs and expenses of this suit, and shall exhibit their claims, with the proper proof thereof, to the auditor hereunder appointed,’ etc. The decree does not postpone the sale until the claims should be exhibited to the auditor, and, consequently, so far as other creditors were concerned, leaves the trustee without information as to the quantity of property it would *436be his duty to sell. He accordingly sold the whole estate.
“The eighth section of the law which authorizes the :sale of real estate descending to minors enacts ‘that .all sales made by the authority of the chancellor under this act, shall be notified to, ‘and confirmed by the chancellor, before any conveyance of the property shall be made.’ This provision is totally disregarded. The sale was never confirmed by the court; yet the conveyance lias been made.”
Hence the court after using the language quoted by complainant, held that there were radical errors on the face of the decree, showing that the interests of the infants had not been protected as was required by law and usage. But the extract we have made from the •opinion will suffice, we think, without further comment, to show that it is no authority for complainant’s contention in the case at bar.
Having failed to find from the record that complainant (appellant) has been condemned without due process of law, or that the former proceeding was affected by error going to the mei’its of the result decreed, the chancellor’s decree holding the present bill to- be devoid of equity will be affirmed.
Affirmed.
Anderson, C. J., and McClellan and Gardner, JJ., concur.