First Nat. Bank of Anniston v. City of Jacksonville , 236 Ala. 639 ( 1938 )

It is my opinion that the case does not present a justiciable controversy within the meaning of the Declaratory Judgment Act, Gen.Acts 1935, p. 777, and that the Circuit Court was without jurisdiction to terminate the trust; that the appeal should be dismissed on the ground that the decree appealed from is void. Jefferson County v. Johnson, 232 Ala. 406, 168 So. 450; Upshaw v. Eubank et al., 227 Ala. 653, 151 So. 837; County Board of Education v. Borgen, 1934, 192 Minn. 512, 257 N.W. 92.

In Upshaw v. Eubank, supra, it was noted [page 838]: "The only brief filed is that for appellant, in which it is stated: 'The opinions expressed in this brief and argument are those of solicitor for the appellant. The lower court adopted these opinions as its own and based the final decree thereon.' " The appeal was dismissed, and it was observed: "It [the bill] merely seeks an advisory decree or opinion in respect to the respective interests of the parties, and the minor, Wileyna L. Upshaw, who, if the averments of the bill are true, has an interest in the property, is not a party to the proceeding."

In the Minnesota case, supra, the court used this language [page 94]: "Each appellant, contrary to what is customarily the case, seeks to sustain the judgment from which the appeal was taken. It will thus be seen that there is before us an appeal by parties who were not aggrieved by the decision below, and this court is urged by them to affirm what was there accomplished. Obviously, then, the case is one where each appellant is satisfied with what was accomplished in the lower court, and as such no other relief is here sought from the judgment appealed from except that the same be sustained. We are asked to approve what was done below by those who were the only adverse parties to this proceeding. No taxpayer has appeared, nor has the court required any taxpayer to be summoned or to appear in the case. * * *

"It necessarily follows from what has been stated that the instant case utterly lacks the essential element of controversy — that there is wholly lacking an adverse party. Any opinion that might be written could only be an advisory one. As such it would be without force. Such decision would not be res judicata.

"It appearing that there was no controversy in the court below any more than there has been here, it necessarily follows that the judgment appealed from must be reversed."

In appellants' brief in the case at bar we find this statement: "Being unwilling to rely upon the decision of the learned Chancellor without the confirmation of this Court, the bank as trustee, has appealed said decree, and appellees have consented for said appeal to be submitted without further notice to them in order that a final decree may be had at the earliest possible moment."

This, as is stated in brief amicus curiæ, is but a frank request for "an advisory opinion."

If the bill brings the case within the jurisdiction of the Circuit Court, its adjudication is entitled to full faith and credit, if it is without jurisdiction, the decree is subject to be annulled by a bill of review for error of law apparent, and affords the trustee no protection. Taylor et al. v. Crook, Adm'r, et al., 136 Ala. 354, 34 So. 905, 96 Am. St. Rep. 26.

I adhere to the view expressed by Justice FOSTER, that the trust cannot be terminated short of the period fixed by the trust agreement, except for re-establishment of a public school system.