Erwin v. Reese , 54 Ala. 589 ( 1875 )

MANNING, J.

1. Section 3350 of the Revised Code declares that “ a demurrer to the bill must set forth the ground of a demurrer specially, and otherwise must not be heard.” This court has several times held that under this statute, a demurrer for want of equity only, was too general to be entitled to notice. Certainly we should not be justified in holding that such a demurrer presented for the decision of ' the chancellor the question whether the suit was well brought in Chambers county, where the land lies, instead of Lee county, where defendant resided.

2. The rule in respect to assignments of error, requires the appellant “ to state concisely in writing in what the error consists.” — Rev. Code, p. 816. No assignment of error makes any reference to the plea, or any of its allegations in this cause i and they are, therefore, not brought before us for consideration.

3. Objection is taken to the validity of the decree because rendered in vacation.

At the September term, 1873, a reference was made of this cause to the register as master to ascertain and report how much money was due from defendant to plaintiff upon notes, the payment of which -was secured by a lien on the land described in the bill, and which it prayed should be sold to pay them. In March, 1874, the register made his report. The minute entry of the court in respect to it, is as follows: “In this cause the report of. the register is read, and by consent of the solicitors in open court, it is ordered that the cause shall be taken up in vacation during the next sitting of the chancery court in Opelika — where it is agreed that any motion can then be made by either party, and any order or decree rendered in the matter, either interlocutory or by consent, that the court could now make, or hear when in regular session.” This does not explicitly and clearly set forth the meaning of the parties and court. It shows, however, that “by consent of the solicitors in open court, it (was) ordered that the cause be taken up in vacation during the next sitting.of the chancerycourtin Opelika,” andthatitwas “ agreed that any motion in it might then be made by either party,” and any decree therein rendered, which the court could make or hear when in regular session. This seems equivalent to a submission of the cause to the chancellor in term time, to be taken up by consent for consideration in vacation, at a time and place designated when and where the parties might, according to agreement, appear and be heard if they should so choose, upon any matter concerning the cause. And for aught we can know to the contrary, the time mentioned may have been chosen for the accommodation of tbe defendant, who is appellant in this court. At least, it was expressly agreed tbat the cause'need not be taken up by tbe chancellor witbin ninety days; for tbat time would elapse , before tbe court at Opelika was to be beld; and tbat the decree should thereafter be rendered in vacation. Tbe chancellor so understood tbe order; for, in bis decree dated July 14th, 1874, be says: “ This cause came on to be beard at tbe March term, 1874, and was submitted, upon motion, to confirm tbe report of tbe register and for final decree; and by consent of tbe respective parties, which is of record in this case, tbe cause was beld under consideration for final decree in vacation.”

Tbe correctness of tbe decree is not assailed. But it is insisted by appellant tbat being enrolled in July, it can not be upheld, because rendered after tbe time prescribed by tbe statute of December, 1873, “to amend section 3470 of tbe Revised Code,” which enacts tbat “tbe chancellor must, in all cases, render bis decree in writing, during tbe session of tbe court at which tbe cause is beard. He may, however, by the written consent of counsel in tbe cause, render a decree in vacation, witbin ninety days after tbe bearing.” This act was intended to produce promptitude in tbe decisions of tbe chancellor, and not to invalidate decrees rendered in vacation after tbe time specified, by consent of parties given when tbe causes were submitted.

As long ago as 1821, tbe supreme court of Alabama bad under consideration tbe question of tbe power of a court of equity to render a decree in vacation by consent of parties in term time, upon an objection thereto, which is made in this case, and then said: “Did this consent authorize tbe decree to be entered out of term time? Tbe answer of tbe counsel for plaintiff is, tbat consent can not give jurisdiction. Tbe law bad given to tbe court jurisdiction of tbe subject matter in controversy. Tbe parties agreed tbat this jurisdiction may be exercised in a particular manner and to waive all objection to tbe irregularity — tbat tbe power of determining the cause in term time may be exercised out of term time.....This is a case in which tbe maxim, consensus tollit errorem, applies with strict propriety. A party can not take advantage of an irregularity after having entered on tbe record bis consent to waive it.” — Lewis, Adm’r, v. Lewis, Minor, 35.

A similar decision was subsequently made in respect to a judgment in vacation, upon a demurrer in an action at law, in a case in Perry circuit court, which tbe parties submitted in term time, to be argued at tbe following circuit court in Bibb county, and. afterwards decided in vacation. — King v. Green, 2 Stew. 133.

And section 717 of tbe Revised Code enacts that “ chancellors may make orders and render final decrees at any time, by consent of parties or their counsel.” In view of the uniform practice in this particular, and the great inconvenience that would result from abolishing it, we do not think the legislature intended by the act of December, 1873, to declare void orders and decrees, correct in themselves, made by consent of parties, in vacation, though not within the time prescribed by its terms.

The decree of the chancellor is affirmed.