Wright v. May

40 Ala. 550 | Ala. | 1867

BYRD, J.

Upon the allegations of the bill, William L. Williams is an indispensable party; and although the bill prays that he be made a party defendant, yet it does not appear from tlie record that he was ever served with process to answer the bill. It does appear that, on the 24th January, 1859, the register made an order of publication against him; but it does not appear that the order was ever complied with, or that any further action was ever taken upon it. The cause was submitted for a final decree, on the pleadings and proofs; and the chancellor dismissed the bill, without assigning any reason therefor. In the state of the pleadings, the court did not err in dismissing the bill. The cause was prematurely submitted. The court could have set aside the submission, and required Williams to have been made a party, before proceeding to a final decree. But the court is not bound to protect a party against a premature submission of his cause.

Note by Beporter. — After the delivery of the foregoing opinion, the appellants asked and obtained a certiorari, returnable instanter, to perfect the record. The register, in his return to the certiorari, stated that there was no citation or subpoena in his office showing that service was ever perfected on the defendant William L. Williams, nor anything else, except an entry on his trial docket, signed by the warden of the penitentiary, which stated that the subpoena was executed by serving a copy on said Williams, who was a convict in the penitentiary, on the 2d September, 1857. The cause being again submitted, the following opinion was afterwards delivered:

We have looked into the merits of this cause, upon the pleadings and proofs ; but, without intimating an opinion upon them, we are of opinion that the chancellor should have dismissed the bill without prejudice to the right of the complainant filing another bill. And in conformity to the established practice of this court, a decree is here rendered, reversing the decree of the chancellor, and rendering a decree dismissing the bill without prejudice; and the appellant must pay the costs of this court and the chancery court.— Wilkins & Hall v. Wilkins, 4 Porter, 245; Burns v. Hudson, 37 Ala. 62, and cases cited therein; Taliaferro, adm’r v. Branch Bank of Montgomery, 23 Ala. 757.

Judge, J., not sitting, having been of counsel in the cause.

BYRD, J. — The return to the certiorari does not relieve the ease from the objections taken in the former opinion. The return copied from the trial docket is not sufficient to prove the service of the subpoena, when it is evident that the court below did not treat it so, as appears by the appellants’ applying in January, 1859, for an order of publication against "William L. Williams, to answer “ the bill and amended bill,” which was granted, and was never perfected ; or, if so, the record does not show the fact. But, even if a subpoena had been served, or the publication perfected, still the record fails to show that the cause was ever at issue on the amended bill as to said Williams. There is no answer by him on file, nor any decree pro confesso against him on the bill as amended.

Let the former judgment-entry made at this term be re-entered.