Opinion
SC 68.
December 14, 1972.
Appeal from the Circuit Court, in Equity, Marion County, Carlton Mayhall, Jr., J.
John Self, Hamilton, for appellants.
The general rule is that persons whose rights are directly and necessarily affected by the decree, and are materially interested in the subject-matter of a suit, in equity, must be made parties. Turnipseed et al. v. Blan, 226 Ala. 549, 148 So. 116; Webster v. Talley, et al., 251 Ala. 336, 37 So.2d 190; Court of County Revenues for Lawrence County, et al. v. Richardson, 252 Ala. 403, 41 So.2d 749. The burden of bringing necessary parties is on the complainant and on final hearing if he has omitted a necessary party, his bill will be dismissed. Warner v. Warner, 248 Ala. 556(8, 9), 28 So.2d 701; Ruffin v. Crowell, 253 Ala. 653, 46 So.2d 218; Baisden v. City of Greenville, 215 Ala. 512, 111 So.2d 2. An easement is an interest in land, and cannot be decreed ex mero motu, without applicable legal standards. Kratchoville v. Cloverleaf Plaza, Inc., 276 Ala. 563, 165 So.2d 113. The phrase "To maintain and upkeep" implies the preservation of the status quo, or a restoration approximately to the original condition, natural wear and tear excepted. Hampers v. Darling, 194 Pa. Super. 59, 166 A.2d 308.
Bill Fite, Hamilton, for appellee.
Assignment of error "for that the decree of the court was contrary to the law in the case" raises nothing for review. Thagard v. Brock, 210 So.2d 821, 282 Ala. 262. If assignment of error is uncertain and indefinite, Supreme Court will decline to consider it. Thagard v. Brock, 210 So.2d 821, 282 Ala. 262; Stapleton v. Stapleton, 209 So.2d 202, 282 Ala. 62. Assignments of error that decree and judgment were contrary to law, to the facts in the case and that decree and judgment were not sustained by great preponderance of evidence were too general. First Natl. Bank of Birmingham v. Brown, 287 Ala. 240, 251 So.2d 204. Assignments of error not predicated on adverse rulings of trial court are defective and will not be considered on appeal. First Natl. Bank of B'ham v. Brown, 287 Ala. 240, 251 So.2d 204. Assignments of error "the decree appealed from is contrary to the great weight of the evidence, the decree appealed from is not supported by the evidence, the decree appealed from is contrary to law" did not allege error committed by trial court, and were insufficient to present any question for review. Mills v. Pearson, 287 Ala. 311, 251 So.2d 612. Doughty v. City of Fayette, 278 Ala. 121, 176 So.2d 481. Assignment of error reciting that the verdict and judgment are contrary to the law and the evidence is not sufficient to present any question for review. Bertolla v. Kaiser, 267 Ala. 435, 103 So.2d 736.
Appellants appeal from an adverse decree requiring them, as Executors of the Estate of Murray Cobb Hollis, Deceased, to pay $150 towards, and to oversee and permit, the installation of a water meter and connection of water pipes to certain second floor office space, the income from which, under the will of the deceased, was bequeathed to appellee, widow of the deceased.
The first assignment of error is:
"1. For that the Decree and Judgement [sic] is contrary to the law. (T-117)"
This assignment of error raises nothing for review and is without merit. Thomas v. Brook, 274 Ala. 462, 149 So.2d 809 (1963).
The second assignment of error is as follows:
"2. For that the Decree and Judgment (T-117) and Supplemental Decree (T-118) are contrary to the facts in the dase [sic]."
This assignment of error is faulty, in that it is too general. Thus, it must also fail. Thornton v. Tutt, 283 Ala. 72, 214 So.2d 425 (1968).
The third assignment of error recites:
"3. For that the Decree and Judgment (T-117) and Supplemental Decree (T-118) are not sustained by the great preponderance [sic] of evidence and is contrary to both the law and the facts."
This assignment of error is too general and consequently raises nothing for review by this Court. Thomas v. Brook, supra; Thornton v. Tutt, supra.
The fourth assignment of error reads as follows:
"4. For that the Court erred by failing to apply the applicable law to the provision (T-2 3) in question in the will."
This assignment of error is too uncertain and indefinite and presents no particular error for our review. J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 212 So.2d 831 (1968).
The fifth assignment of error recites:
"5. For that the Court erred in rendering the said Decree and Judgment (T-117) and Supplemental Decree (T-118) as said Decrees and Judgments are not sustained by the great weight of the evidence and facts of the case."
This assignment of error is also bad. It raises nothing for review. Thomas v. Brook, supra; Thornton v. Tutt, supra.
Appellants' sixth assignment of error complains of a lack of a necessary party. We will consider this assignment of error, since we think it sufficiently raises the issue.
It appears from the pleadings and the testimony that the decedent bequeathed to his widow, the appellee Pearl P. Hollis, the gross rental from the second floor office space in a certain building in Winfield, Alabama. It further appears that the water meter and water pipes running to the second floor were disconnected after the death of the testator. (None of the pleadings reveal, but the testimony reveals, that the pipes ran through a drug store on the first floor.) The second floor office space was located above three stores, one of which was the drug store.
After the bequest to the widow, the will provided, inter alia, that "any expense on the maintenance and upkeep of the said herein described properties be paid from the principal of the estate."
The widow, Mrs. Pearl P. Hollis, prayed that the court require the executors of the Estate of Murray C. Hollis to pay the expenses of installing a water meter and connecting water pipes to the second floor premises, the income from which was left to her.
In a decree rendered on April 27, 1972, the Circuit Court of Marion County, in Equity, granted the prayer of the bill and ordered the executors to pay $150 from the funds of the estate for the installation of a water meter and connection of water pipes to the upstairs office space.
A supplementary decree was rendered by the court on May 8, 1972, which, by its terms, amended the decree of April 27, by ordering the executors to oversee the installation of the water meter and the connection of the pipes and further ordered them to order and permit the attachment of the meter and the pipes to the building.
Appellants, in brief, argue that Beverly K. Hollis is the owner of the drug store on the first floor, being a devisee under the will of the deceased, his father, and that, as such, he is a necessary party to this cause.
Beverly K. Hollis was made a party as an executor, but was not made a party in his individual capacity. Appellants raise this issue of the want of a necessary party for the first time on this appeal.
In the case of Irvin v. Irvin, 207 Ala. 493, 93 So. 517 (1922), this Court held, viz:
"* * * Where the fact of omission of a necessary party is shown on the face of the bill, it may be questioned by demurrer, or notice of the defect taken by this or the lower court ex mero motu. [citations omitted] If that defect is not shown by inspection of the bill, it should be indicated by a plea in abatement. * * *"
See also: Peterson v. Hamilton, 286 Ala. 49, 237 So.2d 100 (1970); Carwile et al. v. Crump et al., 165 Ala. 206, 51 So. 744 (1910).
The nonjoinder of Beverly K. Hollis was not raised in this case by a plea in abatement nor by any other pleading. It was raised for the first time on this appeal by appellants' sixth assignment of error. A careful reading of the bill in this case does not indicate that Beverly K. Hollis is the owner of any part of the first floor premises. Thus, it does not appear that he was a necessary party.
The decree of the Circuit Court of Marion County, in Equity, is due to be affirmed.
Affirmed.
COLEMAN, McCALL, FAULKNER and JONES, JJ., concur.