Opinion
4 Div. 669.
April 26, 1917. Rehearing Denied May 24, 1917.
Appeal from Chancery Court, Houston County; O. S. Lewis, Chancellor.
W. A. Gunter, of Montgomery, for appellant. Farmer Farmer, of Dothan, for appellee.
There was no need for the presence of L. D. Culbreth. Both the pleadings and the proof showed that his interest in the subject of litigation had been eliminated before the bill was filed — eliminated by his repurchase from defendant (appellant) of the land which he had conveyed to appellant, whether by mortgage or deed with an option of repurchase is now a matter of no consequence, since the decree in no wise touches upon any right of his.
There was a suggestion of fact — that one Roach, without notice of complainant's asserted equity, had before bill filed purchased for value from the defendant Dawsey the land which complainant had conveyed to Dawsey — which fact, if shown to the court in a more authoritative way, would have justified an order to bring in Roach as a party; but the court was not required to take such action on a suggestion, without more. If Roach has rights, they have not been affected by the decree, to which he was not a party.
As the cause was submitted to the chancellor on the undisputed evidence offered by the complainant, no decree could have been considered other than that which was rendered. If Roach has acquired an interest, it would have been better, of course, to have him in; but, even in that event, his presence was not necessary to the settlement of the equities between complainant and Dawsey.
The chancellor may have been in error in supposing that he had no jurisdiction of the motion for a rehearing — probably was; but the motion should have been denied on the showing made for it, and it is a matter of no importance that the chancellor may have assigned a wrong reason for his ruling. The motion hardly does more than reiterate the matters of defense that had been averred in defendant's answer to the bill, and the evidence on which it was submitted shows a case of wholly inexcusable neglect on the part of defendant, or some one for whose neglect he was responsible, in the preparation of the defense. In truth, though the matter was repeatedly brought to the attention of defendant or his counsel, no defense was prepared or presented, except in the way of averments in the answer. The matter rested in the discretion of the chancellor (Ex parte Gresham, 82 Ala. 359, 2 So. 486), and this court is unable to affirm error of his ruling against the motion.
Affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.