Hendrix v. Francis , 203 Ala. 342 ( 1919 )

This is an appeal from a decree or decretal order of the chancery court, confirming in part and setting aside in part a sale of certain lands by the register of the court, in pursuance of a former decretal order of the court directing the sale in question.

Appellee makes a motion to dismiss the appeal on the ground the decree or order is not such a one as will support an appeal.

There is no merit in the motion; the decree is a final one in the sense it will support an appeal. In part it is a final decree in every sense of the word. In so far as it confirmed the sale of a part of the land sold, no other decree will, or can, ever be rendered in that suit, unless that decree is reversed on appeal, or amended by some other proceeding. It is to this extent final in point of time, as well as final in the sense that it will support an appeal.

The phrase "final decree or judgment" is used in different senses. The authorities, or many of them, were reviewed in the case of Wynn, Adm'r, v. Tallapoosa County Bank, 168 Ala. 469,480, 481, 53 So. 228, 233. It was there said:

"Taken in a strict, technical sense, the final decree of a court of chancery is the sentence of the court, finally and conclusively determining all the matters in controversy, disposing entirely of the cause, leaving nothing further for the court to do. Such is not the meaning of the term 'final decree,' as it is employed in the statute. The test of finality of a decree to support an appeal is not whether the cause remains in fieri, in some respects, in the court of chancery, awaiting further proceedings, necessary to entitle the parties to the full measure of the rights it has been declared they have; but whether the decree which has been rendered ascertains and declares these rights — if these are ascertained and adjudged, the decree is final and will support an appeal. * * *

"When a decree is final upon the merits — adjudging the equities and settling the rights of the parties — an appeal will lie under the statutes. If the decree possesses these properties, it is immaterial, so far as affects the right of appeal, that the cause is still in progress, awaiting further proceedings necessary to entitle the successful party to the possession and enjoyment of the rights adjudged to him."

In the case at bar, there had not only been a final decree settling the equities of the parties, and directing a sale, and that it be reported back for confirmation or rejection, but there was a decree rendered confirming the sale in part, and disaffirming in part, and ordering a resale of such part of the property. Hence, so far as a part of the property is concerned, the decree is "final" in the sense that it entirely disposes of the cause, as to that part of the property.

The mere fact that the cause, as to a part of the property, remains in fieri as to a resale, and confirmation, does not prevent the decree from being "final" as to supporting all appeal, any more than did the fact that the decree which settled the equities, ordering a sale, keep it from being final.

So far as a purchaser at a judicial sale is concerned, decree setting aside the sale, and annulling his purchase, is final. All rights that he acquired by virtue of the decree ordering the sale, and his purchase, is gone or destroyed, unless he appeals from the decree setting aside the sale. This court has repeatedly held that a failure on his part to appeal was a waiver of his right to object, and that he could not without some other equity file a bill to obtain relief.

"As a general rule, while the suit is undecided (while it remains in the court, and subject to its control), in which a decree of sale is rendered, an original bill is not the appropriate remedy to impeach and set aside the sale. In that suit, the fairness and regularity of the sale are open to contestation; and before it is perfected by confirmation, in the absence of some peculiar circumstances, cannot be assailed and litigated in a collateral suit. Until confirmation, the sale is not complete — is under the control of the court, which can exercise a sound discretion in regard to it, granting or withholding confirmation, as the rights and interests of the parties, and the ends of justice may require. Hutton v. Williams, 35 Ala. 503, 76 Am. Dec. 297. Any party in interest, or the purchaser, if a stranger, who by his bid becomes a quasi party, may move for or resist confirmation; and it is but seldom there can be either reason or justice for resorting to collateral remedies. The order or decree of confirmation is essentially a judgment; it fixes the rights and liabilities of the purchaser, and operates a divestiture of title. It is an incident of the suit in which the decree of sale is rendered, and ought, in that suit, to be resisted. If there is no resistance, whatever of injury may result is attributable to a want of diligence, from which courts cannot relieve parties." Sayre v. Elyton Land Co., 73 Ala. 85.

There is an unbroken line of decisions from that of Littell v. Zuntz, 2 Ala. 256, 36 Am. Dec. 415, down to the case of De Loach v. White, 80 So. 813,¹ present term, in which appeals like this have been sustained; and never one in which the right of appeal has been denied. If there was any doubt about the proper construction of our statutes as to such decrees being final as for supporting an appeal, the statutes have been too long construed as supporting them to be now departed from.

Counsel for appellee relies on the case of Reed v. Hughes,192 Ala. 162, 68 So. 334. That was an appeal from an order of the probate court, and different statutes were there involved; and that order, unlike the one here involved, did not confirm in part and in part set aside. On further examination of that decision we are of the opinion that the decision is erroneous, and is expressly overruled.

A decree, order, or judgment confirming or setting aside a judicial sale is final in the sense it will support an appeal. A motion to confirm or set aside a sale is in a sense an independent or new proceeding, and a judgment or order finally disposing of the motion, whether by granting or denying the motion, if entered of record, is final as for the purpose of supporting an appeal. See the following authorities which so decide: Montague et al. v. International Trust Co., 142 Ala. 544,38 So. 1025; Glennon v. Mittenight, 86 Ala. 455,5 So. 772; Eatman v. Eatman, 83 Ala. 478, 3 So. 850; Allen v. Allen, 80 Ala. 154; Thornton v. Highland, etc., R. R. Co.,94 Ala. 353, 10 So. 442; Hurt et al. v. Naves, Adm'r;49 Ala. 460; Kennedy's Heirs v. Kennedy's Heirs, 3 Ala. 437; Gartman et al. v. Lightner et al., 160 Ala. 202, 49 So. 412; Roy et al. v. O'Neill, 168 Ala. 354, 52 So. 946.

It results that the motion to dismiss the appeal is not well taken, and is overruled.

Motion to dismiss appeal overruled.

All the Justices concur, except McCLELLAN, J., who dissents.

¹ 202 Ala. 429.