Wilson v. Holt , 85 Ala. 95 ( 1887 )

SOMEBYILLE, J.

This case has heretofore twice been before this court on appeal. — Holt v. Wilson, 75 Ala. 58; Wilson v. Holt, 83 Ala. 528. Tbe application is now for tbe writ of mandamus, to compel tbe chancellor to strike out an order requiring an amendment of tbe bill so as to make tbe devisees of Mrs. Emeline Wilson parties to tbe suit, on the ground that, as holders of tbe legal title to tbe property in controversy, they are indispensable parties.

It is manifest from tbe last decision made in tbe cause (83 Ala. 528), which resulted in tbe reversal and remandment of tbe cause, that tbe legal title was never divested out of such devisees, by reason of tbe fact that tbe order for tbe sale made by tbe Probate Court was held to be absolutely void.

Tbe question as to tbe introduction of necessary parties, is one which may.be raised by demurrer, motion to dismiss, plea, or answer, according as tbe defect may appear on tbe face of tbe bill, or be made to appear extrinsically. If tbe absent parties are indispensably necessary — so that tbe cause can not properly be disposed of on tbe merits without their presence — tbe objection may be made at tbe bearing, or on error, or it may be taken by tbe court ex mero motu. 3 Brick. Dig. p. 373, § 98.

Tbe record shows that these parties were at one stage of tbe proceeding introduced in tbe bill by tbe complainant, and, on demurrer by tbe defendants, making tbe objection tbat there was a misjoinder, were ordered to be stricken out by tbe court. Tbe sustaining of this demurrer was an interlocutory ruling, liable to be reviewed by tbe chancellor at any time before final judgment. — Brock v. S. & N. Ala. R. R. Co., 65 Ala. 79. When tbe decree was reversed and tbe cause remanded, tbe decision of this court made tbe error of tbe ruling obvious, and tbe chancellor could properly have ordered tbe amendment to be made, ex mero motu, upon tbe facts appearing in tbe averments of tbe amendment originally proposed and ordered to be stricken out. If be bad failed to take this step, tbe decree would probably have been reversed by this court on appeal, as was done in Lawson v. Ala. Warehouse Co., 73 Ala. 289, because of tbe absence of parties whose presence is necessary to quiet litigation.

The ruling sustaining tbe demurrer for uprd of proper parties was erroneous for two reasons: First, when parties who have no interest in a suit (admitting tbat tbe devisees of Mrs. Wilson bad none, as claimed) are improperly joined as defendants, tbe other defendants can not take advantage of tbe misjoinder. — Horton v. Sledge, 29 Ala. 479. Second, tbe devisees were not only proper but necessary parties, on tbe ground, as we have above said, tbat tbe legal title of tbe land devised was vested in them, and was not affected by tbe void sale attempted to be made by tbe Probate Court. Wilson v. Holt, 83 Ala. 528.

No element of estoppel enters into this case. And tbe case is clearly distinguishable from Ex parte Cresswell, 60 Ala. 378, where tbe chancellor bad made an order setting aside and vacating a final decree rendered by him at a former, or adjourned term.

Tbe applicant fails in showing a specific legal right, and tbe writ prayed for will be refused on tbat ground, without deciding tbe question of tbe appropriateness of tbe remedy in this case.

Application denied.

CloptoN, J., not sitting.