Pollock v. Pope

GABDNEB, J.

Appellee submits a motion to dismiss this appeal upon the theory that appellants, assigning errors here, show no right to appeal, or that they have not sustained any legal injury, and argue to the effect that these appellants were not proper or necessary parties to the cause, and that the same should have been continued in the name of the surviving partner, Bernheimer. There was no demurrer taking the point that these parties were not proper or necessary parties to the cause, nor is the decree overruling the motion to strike the bill of reviver here sought by respondent to be reviewed. The cause proceeded to a final submission, and decree was rendered against these appellants, who were parties complainant in the court below upon a- reviver of the cause. We do not think, therefore, that the question argued is presented by motion to dismiss the appeal.

Moreover, it is disclosed by the undisputed proof that the partnership of Pollock & Bernheimer had been dissolved, and that Pollock had acquired the entire interest of Bernheimer and continued to own the same. Those claiming under Pollock were therefore the parties really interested in the suit.

Not only was a foreclosure of the mortgage on the real estate sought by this proceeding, but a reformation of the mortgage was also prayed, and likewise a reformation of the deed executed to Pope, which contained covenants of warranty. Whether the devisees under the will wore necessary parties under these circumstances, they were certainly proper parties. Thompson v. Campbell, 57 Ala. 183; 34 Cyc. 967 et seq.

The motion to dismiss is overruled.