Washington v. Arnold

52 So. 463 | Ala. | 1910

DOWDELL, C. J.

The bill is exhibited against W. D. Washington, Janie S. Washing-ton, and the Ensley Land Company, all of whom are made respondents. W. D. and Janie S. Washington filed a joint demurrer. The cause was submitted for decree on this demurrer only as to the respondent W. D. Washington, and a decree overruling the same Avas rendered. From this decree the present appeal is prosecuted under the statute. — Code 1907, § 2838.

The appeal is taken jointly in the names of W. D. Washington and Janie S. Washington, and only in their names. Motion is noAv made to dismiss the appeal, because not taken in behalf of the respondents to the bill. The general rule is that appeals must be taken iu thé names of all the plaintiffs or defendants as the case may be, and summons and severance had in the appellate court for purpose of assignment of errors. The rule, however, finds its limitation, in that only parties to the suit who are affected by the judgment or decree appealed from should be made parties in the appeal. The only case among the decisions of this court that we have been able to find which might be said to indicate a 'contrary view is the case of Clark v. Knox, 65 Ala. 401. It appears from the report of that casé that the record never came into the hands of the reporter. The learned judge, in the use of general terms with reference to parties to the appeal, might well have had in mind in that case that all of the parties to the suit were affected by the decree appealed from. So we think, when properly understood, that the case is not opposed to the above-stated rule.

In the present case the cause was submitted to the chancellor for decree solely upon the demurrer of the respondent W. D. Washington to the bill. No submission was had or decree rendered on the demurrer of the other respondents. As a matter of fact, the respondent F/iislev Company did not demur to the bill. It is difficult to see how the decree on the demurrer of W. D. Washington to the bill could affect the other respondents. It is still open for the respondent Janie S. Washington to invoke a ruling upon her demurrer to the bill.. It is true she has joined in the appeal. This, however, was an irregularity; but the appellee’s motion does not go to this defect or irregularity in the appeal. The motion to dismiss the appeal must be overruled.

The assignments of error are jointly and severally made by W. D. and Janie S., but only the assignments, by the former will be considered, since the latter is not ¿ party to the decree appealed from, nor is she affected by it. The bill shows by its averments that the respondent W. D. Washington purchased of the Ensley Land Company, a corporation, a certain described lot in the city of Ensley, and urns put into possession of tbe same by tbe said Ensley Land Company; that tbe said W. I). Washington contracted with one Gates to erect a building on said lot, and that tbe said Gates, in pursuance of said contract, did erect the building on tbe lot; that tbe complainants furnished the material for tbe •erection of said building; that in October, 1907, tbe complainants brought suit in tbe circuit court of Jefferson county, against said Gates and the said W. D. Washington, for tbe purpose of obtaining a personal judgment against said Gates, and to enforce a lien on tbe said lot .and building for materials furnished by these complainants in tbe erection of the building; that said suit was prosecuted- to judgment in April, 1908, in which judgment a lien was declared on tbe said building and lot; that pending said suit, and on tbe 14th of December, 3907, tbe Ensley Land Company, for a recited consideration, executed a deed to said lot to tbe respondent Janie S. Washington, tbe wife of the said W. D. Washington. Tbe bill charges that tbe said Janie S. paid none of tbe recited consideration, but that tbe same was paid by tbe said W. D., and that tbe transaction urns bad, and the conveyance so made to the said Janie S., ' for tbe purpose of defrauding complainants and defeating them in tbe enforcement of their lien.

Tbe complainants’ asserted lien on tbe building and lot, so far as the respondent W. D. Washington is con•cerned, was conclusively established against him by tbe ■judgment of tbe circuit court, in which proceeding he was made a party. If tbe facts charged in tbe bill are ■true, and they are to be taken as confessed on demurrer, the conveyance to Janie S. was a fraud upon the rights of the complainants, and passed no title to her that in a court of equity could defeat the just claims of the complainants. It is true the Ensley Company’s deed in law conveyed the legal title to Janie S., but not as against the rights of the complainants in a court of equity, when made to defraud as charged in the bill.

The bill is sufficient in averments of fraud, and on the facts stated the complainants are without a complete and adequate remedy at law. The bill, we think, contains equity, and is not open to the objection of multifariousness. Nor do we think it subject to any of the stated grounds of demurrer.

The decree of the chancellor overruling the demurrer will be affirmed.

Affirmed.

Anderson, Mayfield, and Sayre, JJ., concur.