McDonald v. McMahon's Adm'r , 66 Ala. 115 ( 1880 )

BBICKELL, C. J.

The assignments of error relating to the decree rendered at the November term, 1869, would not be entertained, if objection had been made, that the statute had perfected a bar to an appeal from that decree.—Garner v. Prewitt, 32 Ala. 13. The joinder in error is, however, a waiver of the objection. — 1 Brick. Dig. 103, § 290. It is manifest that and the subsequent decree are fatally erroneous, because of a want of necessary and proper parties, against whom any final decree could be rendered in the cause, which granted relief to the complainant. The vendee of the lands having become bankrupt, whatever interest he had in them passed to the assignee in bankruptcy, and he alone was a proper party to suits concerning it.—Rea v. Richards, 56 Ala. 396; Butler v. Merchants, Ins. Co., 8 Ala. 146. The original bill, averring the bankruptcy, disclosed the defect; and it has long been the practice of this court, though objection is not made in the Court of Chancery, to reverse decrees founded on bills wanting in necessary parties — parties having the real, legal interest in the subject-matter of controversy.—Batre v. Auze, 5 Ala. 173; McMaken v. Maken, 18 Ala. 576; Prout v. Hoge, 57 Ala. 28. The defect could have been cured by amendment of the original bill. It was not cured by the suggestion of the bankruptcy of the vendee, and obtaining leave to revive against his assignee. If the bankruptcy had occurred pending the suit, that would have been the proper method of supplying the chasm it caused in the proceedings. It was not the mode of remedying defects in the original bill, and introducing new parties. Nor was the assignee made a party by the mere issue to, and service upon him, of a summons requiring him to appear, and plead or answer. The names of parties must appear in the bill: and though named in the bill, none can be regarded as parties defendant, against whom process is not prayed. — Story’s Eq. PI. § 44

Nor was the cause at issue as to any of the defendants named in the original bill. They had not pleaded or answered ; and the mere declaration that p decree pro confesso be entered against them, can not be regarded as such a decree, which ought to state the facts upon which it is founded, and declare the sentence of the court upon the facts, that the bill is to be taken as confessed. And if a decree pro confesso had been regularly entered, the statute then and now of force prohibited the hearing of the cause on the day of its rendition, and required that the hearing should be on a subsequent day of the term.- — R. C. § 3392 ; Code of 1876, § 3825.

The heirs of the intestate, McMahon, were indispensable parties to the suit. The legal estate in the lands, descending to them on the death of their ancestor, was not devested by the proceedings in the Court of Probate, nor by the sale made by the administrator. No decree could be rendered in their absence, which would bind them or the legal estate, and upon which a purchaser of the lands a-t the sale prayed for in the bill could safely rely.—Prout v. Hoge, 57 Ala. 28.

It is not necessary to notice other errors found in the proceedings, the result probably of mere inadvertence, and which will be avoided in the future progress of the cause. Such as we have noticed compel a reversal of the decree.

Reversed and remanded.