Dailey v. Koepple

DENSON, J. The purpose of this bill is to enjoin the prosecution of a statutory action of ejectment brought by the respondent against a. tenant of the complainant in possession of the lands sued for at the commencement of the action, and to have a deed, through which it is alleged that the respondent immedi [319] ately claims title to the lands, declared void as being a forgery, and to have the deed removed as a cloud on the complainant’s title. The' respondent filed a motion to dismiss the bill, and also demurred to it on the ground that it showed on its face that the complainant had a complete and adequate remedy at law. Without first having the motion and demurrer passed upon by the chancellor, he filed his answer, in which, after reserving the right to have the motion and demurrer passed upon, he denied all of the material allegations of the bill, and alleged the deed attacked by the bill to be genuine and free from forgery. As finally settled in the case of Wilson v. Miller, a case in all its material aspects identical with the one in judgment, this bill is wholly without equity, and the motion to dismiss and the demurrer were well filed. — Wilson v. Miller, 143 Ala. 264, 39 South. 178, 111 Am. St. Rep. 42; Hudson v. Jackson, 144 Ala. 411, 39 South. 227. But it is insisted by the appellee (complainant) that the demurrer and motion were waived, because they were never set down for hearing, and the chancellor in his final decree makes no mention of them. It is not deemed necessary to recite all of the facts which preceded the rendition of the final decree, or any which occurred afterwards. It suffices to say that, in the note of submission upon. which the cause was finally determined, the respondent, as is there shown, submitted his cause on the motion to dismiss the bill, on the demurrer to the bill, and on the depositions of certain witnesses named. In this way the attention of the chancellor was directed to the motion and the demurrer, and it became his duty to take notice of them in the decre. The final decree was rendered on the 28th day of February, 1908, granting the relief prayed in the bill, but not making any mention of the disposition of [320] the motion or demurrer eo nomine. According to the law of the case (Wilson v. Miller, supra), the bill cannot be amended so as to impart equity to it. Indeed, the objection made by the motion is, not that the facts are illy pleaded, but that within themselves, however clearly or fully they might be stated, they cannot be made the basis for equitable relief. Such being the state of the case, the chancellor might well have dismissed the bill ex mero motu. — Jackson v. Knox, 119 Ala. 320, 24 South. 724; Gardner v. Knight, 124 Ala. 273, 279, 27 South. 298. It is also said, in the same argument of appellee’s counsel, that appellant is estopped from insisting that the motion should have been sustained for the reason that he invited the court to pass on the merits of the case without regard to the motion. We know not from the record what the argument of counsel was before the chancellor, nor can we look to the opinion of the chancellor for enlightenment on that subject. But full relief was granted by the final decree to the complainant, and, whatever may be the rule of presumption of waiver of demurrer arising from the fact that a decree fails to pass upon it, we think it cannot and should not be applied to the motion in this cause, for the reason that in granting the relief prayed by the bill the equity of the bill is sustained and the motion is of necessity held for naught — overruled. We have found no case in conflict with this view. None of those cited by appellee are in point on the question, for in all of them, even in respect to demurrers, the facts show that the attention of the chancellor was not called to the demurrer in the note of submission. However, it is not necessary to make the conclusion here reached applicable to demurrers at present. [321] The court is of the opinion the chancellor committed reversible error in granting the relief to the complainant, and holds that he should have dismissed the bill. The decree of the chancellor will be reversed; and a decree will here be -rendered dismissing the bill, as it cannot be amended so as to give it equity. The motion to dismiss the appeal is ruled against the appellee by the case of Poull & Co. v. Foy-Hays Construction Co., 159 Ala. 453, 48 South. 785. Reversed and remanded. Dowdell, C. J., and Simpson, Anderson, Sayre, Evans, and McClellan, JJ., concur.