Smith v. Colpack

This is a bill filed by one Colpack against appellant, and seeks the sale of land for division, alleging that complainant owns a six-sevenths interest, and that respondent owns an one-seventh interest.

Respondent filed an answer and cross-bill, which, as amended, is subject to review on this appeal. He alleges that he owns a four-sevenths interest, and that Marvin Cargile of Miami, Fla., and Zula Winstead of Bessemer, Ala., are reputed to claim some right, title, or interest in said real estate, and calls upon them to set forth and specify such interest. It also sought an allowance for repairs, and an adjudication of the nature of the right of each of the parties in the premises.

Complainant demurred to the cross-bill. Cargile and Winstead did not demur. The demurrer of complainant to the cross-bill was sustained, and cross-complainant appeals.

We are therefore confronted with the sufficiency of the cross-bill in so far as the rights of complainant are concerned. Besides a general ground going to the equity of the cross-bill, the demurrer is based on grounds that there is a misjoinder by bringing in the additional parties, and seeks to litigate their rights with cross-complainant in which the original complainant, made a party to the cross-bill, is not interested.

It is the latter claim which is argued in briefs, so that is what we will consider. The contention is in two aspects: (1) That in such a suit, parties not alleged to have an interest may not be joined at all; and (2) that respondent may not by cross-bill do so, even though it might have been done in the original bill.

This court has held that in a suit in equity for the sale of land for division a party claiming an interest may be brought is so as to quiet the title. Thomas v. Skeggs, 218 Ala. 562,119 So. 610; Sandlin v. Anders, 210 Ala. 396, 98 So. 299; Leddon v. Strickland, 218 Ala. 436, 118 So. 651.

But it is argued that this cannot be done by a statutory cross-bill, under section 6550, Code.

True, we have held in several cases that such a cross-bill could not bring in new parties and make new issues with them in which complainant had no interest. Maryland Casualty Co. v. Holmes, 230 Ala. 332, 160 So. 768; Behan v. Friedman, 216 Ala. 478,113 So. 538; Lowery v. Rosengrant, 216 Ala. 364,113 So. 237; Lamar v. Lincoln Reserve Life Ins. Co., 222 Ala. 60,131 So. 223. But the Legislature has amended section 6550, Code, as to the rule so declared by providing that a cross-bill may bring in any other party who would be a proper party to the matter in controversy. Act approved March 1, 1937, page 208, Gen.Acts 1936-37, Ex.Sess.

That amendment is here controlling.

Moreover, the objection could not be made by complainant, even though they were improperly joined, or the allegations on which relief against them is based, were insufficient for that purpose. Such claim is only available to the parties against whom relief is sought. Davidson v. Rice, 207 Ala. 285,92 So. 474; Norwood v. M. C. R. Co., 72 Ala. 563; Ware v. Curry,67 Ala. 274; Robison v. Robison, 44 Ala. 227.

The decree sustaining the demurrer to the cross-bill is reversed, and one here rendered overruling it.

Reversed, rendered, and remanded.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.

On Rehearing.