Howison v. Baird , 138 Ala. 129 ( 1902 )

McCLELLAN, C. J.

The court overruled a motion to dismiss the. bill for want of equity and a demurrer to the bill, made and filed by the respondents Iiowison and the Export Coal and Railway Co., and in and by the same decree required these respondents to answer the bill within twenty days. These respondents in compliance' with this order filed their answers and afterwards, but within the-thirty days allowed therefor by the statute, took an appeal to this court, from the decrees overruling the motion and the demurrer. Motion is now made to dismiss this appeal because of the filing of said answers; the insistence being that the respondents thereby waived their right to appeal. The motion is without merit. If there had been no order as to the time within which answers should be filed, and the respondents after taking the appeal had filed their answers, it may be that this course on their part would have been a waiver of the appeal, (Winn v. Dillard, 60 Ala. 369, 373) ; but it seems clear to us that the filing of the answers as required by the court before the appeal was taken and before the lapse of the appeal period is not inconsistent with the right to take the appeal at any time within thirty days from the date of the decree. The statute imposes no conditions upon the right to take the appeal, and there is no ground for this court to rest a denial of the right in the mere fact that the answers were filed as required by the chancery court before the term of the right of appeal had expired. The motion to dismiss the appeal must be denied.

In our opinion the motion to dismiss the bill for want of equity should have prevailed. Complainant’s rights in the premises depend entirely upon the resolution in the negative of the inquiry whether Howison had authority and right to enter and take possession of the mines as upon a forfeiture of the tease to Baird and Clark for failure of .compliance on their part with its terms. If Howison had no such right for that the lessees had complied with the terms of the lease his entry was a wrongful ouster of the tenants and their remedy at law for recovery of the possession and their rehabilitation as lessees m possession is plain, adequate and complete, and they have no standing in equity. The bill makes just such a case. It shows that the pretended ground of forfeiture was their alleged failure to pay the royalties due in ¡September, or in August and September, likiO, but it avers that “during the time he (the complainant) and said Clark mined coal from the said lands the royalties so due to said Howison from all the coal mined was regularly paid, month by month, up to and including the month of August and September, 1900.” Taking this as true — as we, of course, must though the bill contains an offer to pay all royalties up to and including the month of September, 1900, “if complainant is mistaken in any respect in regard to the averment that said royalties have been paid,” etc, — the bill shows that Baird’s remedy was clear in an action at law, and thereby demonstrates its own want of equity.

Possibly if the bill had averred that the royalties had not been paid in full, its other averments as to the conduct of Howison would have presented a case for the interference of equity to set aside the forfeiture of the lease; but we are not called upon'to decide that question now.

The decree overruling the motion to dismiss the bill must be reversed, and a decree will be here entered sustaining that motion and dismissing the bill.

Reversed and rendered.