Mead v. Christian

PETERS, C. J. The appeal in this case is from a judgment and decree of the chancery court, dismissing a supersedeas, and rendering judgment against the principal and sureties on the supersedeas bond, for the amount of the decree which was superseded. The original suit, in which the superseded decree was rendered, was commenced on the 24th day of February, 1869, by bill in chancery, filed by Henry A. Christian and others, as heirs-at-law and distributees of the estate of Allen Christian, deceased, against Lemuel G. Mead, as the administrator of said Allen Christian’s estate. Its object was to compel a final settlement of said Mead’s administration of said estate, and a distribution of the assets remaining unadministered, among the complainants, as the parties entitled to the same; and also for general relief. Mead, the defendant in that suit, filed his answer to the bill on the 31st day of May, 1869. After this, at the June term of said court, 1870, the chancellor rendered the decree which was superseded, and which was in these words. [See statement of facts, supra.] The petition for the supersedeas of this decree was presented to the chancellor on the 16th day of July, 1870, which was after the adjournment of the court at the term at which said decree was rendered. The supersedeas was allowed; bond was given, as required by the order allowing it, and the execution of the decree was superseded and suspended. At the next ensuing term of the court, the cause was continued; and at the next term, in June, 1871, the complainants in the decree moved to dismiss the supersedeas. This motion was held under advisement by the chancellor, and was finally disposed of by the following decree. [See statement of facts, supra.] From this decree, the said Mead and his sureties on the supersedeas bond appeal, and here assign said decree as error. 1. The first question raised on the record is as to the character of the decree which was suspended by the supersedeas. Was this decree final, or was it interlocutory merely ? Was it such a decree that the court could, after adjournment, alter it ? If it was not then it could not have been suspended, or altered, in the manner proposed in this proceeding. In order to determine the character of the decree, we must look to the pleadings in the case, the purpose of the judgment, and the words in which it is expressed. Except for fraud, this is the limit of the inquiry. What the record says, is not to be contradicted by anything outside of the record. An averment of the record, touching the matters in issue, is conclusive, unless the [566] record contradicts itself. Deslonde & James v. Darrington’s Heirs, 29 Ala. 92; Beverly v. Stephens, 17 Ala. 701; 1 Grreenl. Ey. § 538. The language of the judgment for the sum of seven thousand dollars is clearly final, both in its purpose and in its expressions. It is a decree for that sum by consent, which was made as the condition of a continuance. When this consent was given, the cause was at issue; and it was competent for the chancellor to impose such a condition at that time. And the appellants have waived their right to complain of it, whether in this manner, or upon error. The consent releases the error, if any was committed. Gowen & Co. v. Jones, 20 Ala. 128; P. & M. Bank v. Willis & Co. 5 Ala. 770; Garner v. Prewitt, 32 Ala. 13. The chancellor, then, did not err in dismissing the supersedeas. 2. The court below having the power, as has been already shown, to make the decree of 17th June, 1870, if it had been interlocutory only, as is supposed by the appellants, the chancellor unquestionably had power “ to amend and control ” it, so as to make it “ conformable to law and justice.” Rev. Code, § 638, cl. 6. In the exercise of this power, he should adopt such practice as will attain in a proper way the end proposed. Although no statutory practice is prescribed, the power is not to fail, because the legislature has thought fit to stop at its bestowal. The grant of the power carries with it, unless otherwise forbidden, the authority to prescribe the form of its execution. Ex parte Bibb, 44 Ala. 140. Here, the appellant Mead applied to the chancellor in vacation, by petition, to exercise his power to suspend an order of his own court, which, it was contended, had been improvidently made. The court could do no more, under this petition, than suspend the order complained of in vacation, until the next regular term of the court; and this was, in effect, the order of suspension which was granted, and which was in these words. [See statement of facts, suprai] Under this order, and in conformity thereto, a bond was given by said Mead, with J. E. Daniel, L. B. Jones, and M. Walker, as his sureties, on the 25th day of July, 1870, and was approved by the register of said court; and thereupon the decree was suspended, and no further action was taken thereon until the next ensuing term of the court, when, on final hearing of the petition, the supersedeas was dismissed, and a decree was rendered against said Mead and his sureties on the supersedeas bond, for the amount of the suspended decree, with interest thereon, and costs. There was no error in this. It was an adoption by the chancellor of the practice of courts of law in similar cases, with such modifications as the exercise of the powers of a court of chancery would permit. It was but the practice which the plaintiff in [567] the petition had himself invoked. Rev. Code, §§ 2812, 2816 et seq. There is no law which forbids such a practice, and nothing in the nature of the jurisdiction conferred on the chancellor which would render it inappropriate. The practice attains the great end of all law — a prompt administration of right and justice, in conformity with the case made in the pleadings. Note by Reporter. — On a subsequent day of the term, in response to an application by the appellants’ counsel for a rehearing, the following opinion was delivered: — PETERS, C. J. — The counsel for the appellants contend, that the chancellor had no jurisdiction to render such a decree against the sureties as was rendered in this case. Certainly, in a court of equity, persons who connect themselves with a pending suit, in any manner permitted by law, become parties to the proceedings. Upon this principle, the sureties on the supersedeas bond, as well as the principal, became parties to that proceeding. The supersedeas bond is not treated as a judgment against them, as it might be in some similar cases at' law. But, being in court, to sustain the supersedeas, or to appeal from an erroneous decree, the sureties subject themselves to its jurisdiction; and in such cases, where there is no practice prescribed by law, the court may make its own practice. Here, this has been done, by a decree against all the parties to the bond. I am not aware of any rule or principle of law which forbids this. In the case of Dudley v. Witter, at the present term, a practice almost identical with this was pursued. In that case, it is settled, that an undertaking given by a party to a suit, with sureties, to pay whatever judgment may be rendered against him, approved by the register of the court, is not such an obligation as requires formal notice to the sureties before judgment can be entered against them. The right of the sureties to compel the principal to pay the decree, if he is able, before a resort is had to the property of the sureties, is not taken away by such a decree. This right the sureties may still enforce by taking the proper steps. Rev. Code, § 2862. The chancellor’s decree only compels the sureties to do what they have undertaken in the chancery court to do. I am unwilling to disturb the practice thus established. The rehearing is denied, with costs. The decree of the court below is affirmed, with costs. Brickell, J., not sitting, having been of counsel.