Opinion
6 Div. 964.
May 17, 1928.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Harsh Harsh, of Birmingham, and Ray Cooner, and Curtis, Pennington Pou, all of Jasper, for appellants.
Nesbit Sadler, of Birmingham, for appellees.
In view of the decision, it is not necessary that briefs be here set out.
The original bill was filed by some of the heirs of James Garner, Sr., against the Empire Land Company, a corporation, and the remaining heirs of said James Garner, Sr., to quiet title to certain mineral rights in lands located in Walker county, Ala., and to sell the same for division among the alleged joint owners. Among others alleged in the original bill to be heirs at law of the said James Garner, Sr., and jointly interested were Samuel Garner, Jr., and John Garner, minor heirs of Samuel Garner, Sr., deceased; Samuel Garner, Jr., being a nonresident of the state of Alabama.
After the filing of the bill, one of the complainants, General A. J. Garner, died, and his death being suggested the complainants amended the bill by making his heirs at law parties defendants, among others Aubrey Garner, the minor son of Earl Garner, deceased, a child six years of age. The bill was again amended, making L. W. Lollar a party defendant.
The Empire Land Company, Lollar, and some of the other respondents filed answers, making such answers cross-bills, and making the complainants and respondents to the original bill parties defendants to such cross-bills.
The case proceeded to a final decree, dismissing the original bill as amended, and settling the title to the mineral rights in controversy in the Empire Land Company, and Lollar according to their respective claims asserted in their cross-bills, without the issuance of summons to the resident minors made parties, or order of publication or other process to the nonresident minor, and without the appointment of guardians ad litem to represent their interests.
These irregularities in the proceeding render the final decree erroneous, and is such error as this court will notice on appeal. Prout v. Hoge, 57 Ala. 28; Baisden v. City of Greenville, 215 Ala. 512, 111 So. 2.
The case not being at issue when submitted, this court will not consider the case on its merits. Daily's Adm'r v. Reid, 74 Ala. 415; Well's Adm'r et al. v. American Mtg. Co. of Scotland, Limited, 109 Ala. 430, 20 So. 136; Rowland et al. v. Jones et al., 62 Ala. 322; Wood v. Montevallo Coal Transportation Co., 107 Ala. 364, 18 So. 108; Levystein Bros. v. O'Brien et al., 106 Ala. 352, 17 So. 550, 30 L.R.A. 707, 54 Am. St. Rep. 56; Singo v. Brainard, 173 Ala. 64, 55 So. 603.
One-third of the costs of the appeal will be taxed against the appellants, one-third against appellee Empire Land Company, and one-third against appellee Lollar.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.