Opinion
6 Div. 38.
January 31, 1924.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
William Vaughan and Baugh Emerson, all of Birmingham, for appellant.
Demurrer is not proper to a plea to the jurisdiction in equity; the test should be by hearing. Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514; Woodlawn v. Durham, 162 Ala. 565, 50 So. 356. Where the record contains no note of testimony, the cause will be reversed. Chancery rule 75; Blackburn v. Moore, 206 Ala. 335, 89 So. 745; Lunday v. Jones, 204 Ala. 326, 85 So. 411; Brassell v. Brassell, 205 Ala. 201, 87 So. 347; Milam Co. v. State, 205 Ala. 315, 87 So. 348; Hymes v. State, 209 Ala. 91, 95 So. 383.
W. A. Denson, of Birmingham, for appellee.
The proceeding here was ancillary to the suit at law. Pacific Bank v. Robinson, 57 Cal. 520, 40 Am. Rep. 120; 23 C. J. 333; Vail v. Hammond, 60 Conn. 374, 22 A. 954, 25 Am. St. Rep. 335; Wilson v. Martin-Wilson Co., 149 Mass. 24, 20 N.E. 318; Id., 151 Mass. 515, 24 N.E. 784, 8 L.R.A. 309; Edwards v. Pickard, 17 Ann. Cas. 391; 20 R. C. L. 1179; 15 C. J. 1405; 7 Fed. St. Ann. 258. Where a plea is manifestly frivolous, the chancellor may set it aside and grant a decree pro confesso. Smith v. Cozart, 45 Miss. 698; 21 C. J. 787; Kennedy v. Creswell, 101 U.S. 641, 25 L.Ed. 1075; Ferry v. Moore, 18 Ill. App. 135; Knott v. Giles, 27 App. D.C. 581.
The bill of complaint in this cause must be considered and treated as a bill by a judgment creditor to subject intangible property which cannot be reached by an execution at law to the satisfaction of complainant's judgment.
Though its purpose is to secure a satisfaction of a judgment at law, rendered on the law side of the circuit court of Jefferson county, it is in fact an independent proceeding in equity, and must be governed by the rules of equity practice and procedure. See Martin v. Carter, 90 Ala. 96, 7 So. 510; Mathews v. Mobile Mut. Ins. Co., 75 Ala. 85. The trial court evidently adopted the theory of counsel for complainant that the bill is a purely ancillary proceeding — in fact, an equitable writ of execution issued by the equity court on the judgment at law, ex parte in character, and requiring no notice of any sort to the defendant in the law case; the theory being that the judgment defendant in that case was ipso facto before the court in any subsequent proceeding, legal or equitable, the purpose of which was to secure a satisfaction of that judgment.
This view is radically erroneous, and hence the procedure of the court and its decrees exhibit serious and fatal errors.
When a plea is filed to a bill in equity, the proper way to test its sufficiency is not by demurrer, as at law, but by having it set down for hearing. Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514; 21 Corp. Jur. 467, § 531. However, this is but a matter of form, and, if the complainant demurs instead, the demurrer may be treated as the equivalent of a motion to test sufficiency, and such an irregularity is not a ground for reversal. Freeman v Pullen, 119 Ala. 235, 24 So. 57; Breeding v. Grantland, 135 Ala. 497, 499, 33 So. 544; Sims Ch. Pr. 306, § 463. So treating the demurrer to respondent's plea, when the demurrer was heard and sustained, the court should have made an order requiring the respondent to plead to the merits of the bill by demurrer or answer, either forthwith or in the time prescribed. The submission being only on the demurrer to the plea, the decree rendered could not extend beyond the terms of the submission. Moreover, without an answer admitting the essential allegations of the bill, or a decree pro confesso entered in due course, the cause was not at issue, and the court could not proceed to final decree. The decree of September 24, 1923, was unauthorized and palpably erroneous in so far as it attempted to grant relief as a final decree on the merits of the cause, even though it were conceded that the respondent was properly before the court by the service of its process, or by voluntary appearance.
As to that part of the decree which sustains the demurrer to the plea, a majority of the court, the writer and Gardner, J., dissenting, are of the opinion that it is not sufficient to defeat the local jurisdiction, since it shows the performance of corporate acts by the corporation's secretary at Birmingham, viz. the countersigning by him of certificates issued by the corporation, and does not sufficiently show that those acts were not "doing business" by the corporation within the state.
The decision of the court therefore is that the action of the trial court in sustaining the demurrer to the plea in question was the equivalent of a ruling that the plea was not sufficient, and the decree in that behalf will be affirmed.
The motion that every nonresident corporation against whom a judgment has been rendered in the circuit court at law is and remains personally before the courts of the same county in any other proceeding against it in those courts in equity, the purpose of which is to subject property to the satisfaction of the judgment at law, is entirely erroneous.
It is of course correctly stated that —
"A court may entertain proceedings ancillary to the judgment, for jurisdiction once acquired is not exhausted by the rendition of judgment, but continues until such judgment is satisfied, and includes the power to issue all proper process and to take all proper proceedings for its enforcement." 15 Corp. Jur. 812 (108).
But this means a proceeding or a process which the law attaches to the original cause in judgment, either by statute, or by the established and inherent authority of the court, for the satisfaction of the judgment it has rendered; the proceeding being in the court that rendered such judgment.
It does not mean a proceeding in another court or jurisdiction, for, under our practice, at least, that proceeding would be a separate and distinct suit, for the purposes of which jurisdiction of the defendant's person must be acquired in the usual way, according to the practice of the court.
In Georgia it has been held that, where a judgment execution has been levied on land as the property of the defendant, and a nonresident of the county files a statutory claim to the land showing a legal title, such claimant is before the court for every purpose germane to the determination of his claim; and hence that he cannot deny the venue jurisdiction of the same court in an equitable proceeding begun by the judgment plaintiff in aid of his levy, attacking the claimant's title for fraud. Thomason v. Thompson, 129 Ga. 440, 59 S.E. 236, 26 L.R.A. (N.S.) 536, 543. There may be good reason for that decision, but the case is materially different from the case at bar.
In some states, either by statute or by long-settled practice, a supplementary proceeding of an equitable nature in the court rendering the judgment may be filed by the judgment plaintiff in aid of his judgment. The proceeding is regarded merely as an amendment and extension of the original complaint, as to which the original jurisdiction of subject-matter and person continues. Mutual Reserve Ass'n v. Phelps, 190 U.S. 147, 159, 23 Sup. Ct. 707, 47 L.Ed. 987. But in Alabama such a proceeding is unauthorized and unknown to the practice of our courts. Though courts of law and equity have been consolidated in our circuit courts, the jurisdiction, procedure and practice remain separate and distinct, and cannot be blended and exercised in one and the same proceeding, whether at law or in equity.
Our conclusion therefore is that the judgment at law against the defendant corporation did not of itself give continued jurisdiction of its person in any proceeding of purely equitable cognizance on the equity side of the court, though limited in its purpose to securing satisfaction of the judgment at law.
Under section 2838 of the Code, an appeal is authorized from any decree sustaining or overruling a plea to a bill in equity, to be taken within 30 days from the rendition of the decree.
It follows from the views above set forth that the decree of the circuit court in equity (dated September 24, 1923) was erroneous in so far as it granted relief. It will therefore be reversed, and the cause will be remanded for further proceedings in accordance with this opinion.
Reversed in part and remanded.
All the Justices concur in the reversal.
SOMERVILLE and GARDNER, JJ., dissent in part.