Opinion
6 Div. 702.
March 12, 1931.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Davis Curtis, of Jasper, for appellants.
No permission to file the bill of review was shown to have been obtained, and the demurrer on this ground should have been sustained. Code 1923, §§ 6607, 6608; Graves v. Brittingham, 209 Ala. 147, 95 So. 542; Chancery Rule 83; Stuart v. Strickland, 203 Ala. 502, 83 So. 600; Gordon's Adm'r v. Moss, 63 Ala. 363; Mitchel v. Hardie, 84 Ala. 349, 4 So. 182. Nichols was the sole party complainant in the cause sought to be reviewed, and is the only proper party defendant to this bill. There is a misjoinder of parties defendant by making Charlotte Longstreet a party. O'Neal v. Cooper, 191 Ala. 182, 67 So. 689; Hinson v. Naugher, 207 Ala. 592, 93 So. 560; Curry v. Peebles, 83 Ala. 225, 3 So. 622; Stuart v. Strickland, supra; Allgood v. Bank, 130 Ala. 237, 29 So. 855. The service obtained on Daisy Dill in the case being attacked by this bill was constructive legal service as provided by law. Code 1923, §§ 9445, 9453, 9452, 9432; Walls v. Skelton, 215 Ala. 357, 110 So. 813; Chancery Rule 22. The service and the decree were binding after thirty days. Code 1923, § 9432. A decree pro confesso being entered prematurely is no ground for a bill of review. Vary v. Thompson, 168 Ala. 367, 52 So. 951; Jordon v. Hardie, 131 Ala. 72, 31 So. 504.
R. A. Cooner, of Jasper, and Z. P. Shepherd, of Carbon Hill, for appellee.
A bill of this nature may be filed within one year from the discovery of the facts constituting the fraud; and no permission to file it is necessary. Section 6608 of the Code is without application. Code 1923, § 8966; Duncan v. Watson, 198 Ala. 180, 73 So. 448; Gill v. More, 200 Ala. 511, 76 So. 453; Meeks v. Miller, 214 Ala. 684, 108 So. 864. The allegations of the bill show that the court had only colorable jurisdiction. It is sufficient in its allegations of fraud and the fraud alleged is sufficient to annul the decree. Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393; Davis v. Albritton, 127 Ga. 517, 56 S.E. 514, 8 L.R.A. (N.S.) 820, 119 Am. St. Rep. 352; 15 R. C. L. 706; Keenum v. Dodson, 212 Ala. 146, 102 So. 230; Lester v. Stroud, 212 Ala. 635, 103 So. 692; Bolden v. Sloss-Sheffield Steel Iron Co., 215 Ala. 334, 110 So. 574, 49 A.L.R. 1206. There is a fraudulent scheme or confederacy charged against the respondents, as well as a simulated cause of action, in which it is alleged they participated. There is no misjoinder of parties respondent. Meeks v. Miller, supra; Bolden v. Sloss-Sheffield Steel Iron Co., supra. Where the residence and post office address are known, a copy of the bill together with a summons must be sent respondent by registered mail. Code 1923, § 9431. To support a decree against a nonresident on publication only, the statute and rules of practice must be strictly observed, and the facts showing such compliance must appear by the record. Watters v. Watters, 210 Ala. 550, 98 So. 813; Code 1923, § 9453.
This is an original bill to impeach a decree for fraud and not a bill of review as dealt with in section 6607 of the Code of 1923, and leave to file same under section 6608 was not necessary. McDonald v. Pearson, 114 Ala. 630, 21 So. 534; Graves v. Brittingham, 209 Ala. 147, 95 So. 542.
While the limitation as to time fixed by section 6608 has been extended by way of analogy to bills to impeach a decree, section 8966 modifies this rule to the extent of allowing one year after the discovery of the fraud. Heflin v. Ashford, 85 Ala. 125, 3 So. 760.
As we understand, the bill charges a fraud and conspiracy on the part of complainant's agent, Charlotte Longstreet, and her corespondent, Nichols, to defraud her of her land by the concoction of a decree of the court adjudging that she has no interest in said land and that she had no notice as required by law of the proceedings. There is no question but what the bill makes out a clear and strong case of a fraudulent scheme upon the part of these respondents to acquire her land through the medium of the equity court and, in effect, charges a fraud upon the court to induce jurisdiction of the cause; that is, the bill charges: That she was a nonresident and "that the complainant had made diligent inquiry and reasonable effort to obtain information as to the particular place of the residence of Daisy Dill, and had been unable to do so and aver that the particular place of residence of the said Daisy Dill is unknown." That the affidavit for publication has a similar statement and that this statement was false, in that the complainant, in the former suit, knew of her place of residence in West Virginia or he was false in stating that he had made due inquiry as his coconspirator and corespondent knew where her place of residence was. That, had the real facts been stated, her last place of residence would have been disclosed to the court and she would have received the notice by registered mail as required by section 9431 of the Code of 1923, and this fact was purposely omitted to induce the court to assume jurisdiction and proceed to act without having given the notice by registered mail as required by said section 9431. Should there be a conflict between section 9431 and Chancery Rule 22 as to giving notice to nonresidents, the statute must prevail.
We think that the fraud charged went to the assumption of jurisdiction by the trial court by a false statement in the bill and affidavit and that the court would not have considered the cause in the absence of notice to Daisy Dill as required by section 9431 had the true facts been presented, and this case falls within the influence of Keenum v. Dodson, 212 Ala. 146, 102 So. 230; Lester v. Stroud, 212 Ala. 635, 103 So. 692; Bolden v. Sloss-Sheffield Steel Iron Co., 215 Ala. 334, 110 So. 574, 49 A.L.R. 1206; Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393.
We do not think that the bill was subject to the demurrer as for a misjoinder. True, Charlotte Longstreet was not a party to the suit from which relief is sought; yet she holds a part of the land by a conveyance from Nichols and would be affected by a decree in this case. Moreover, the bill charges a fraud and conspiracy between these parties throughout to acquire this complainant's land by practicing a fraud on the court in withholding her address and depriving her of notice as provided by section 9431, and the said Longstreet was not an improper party. Grand Lodge v. Shorter, 219 Ala. 293, 122 So. 36. The cases, O'Neal v. Cooper, 191 Ala. 182, 67 So. 689; Hinson v. Naugher, 207 Ala. 592, 93 So. 560, and other cases cited by counsel for appellant, are in no sense contrary to the holding that Charlotte Longstreet is not an improper party, even if she may not have been a necessary one.
The trial court did not err in overruling the demurrer to the bill, and the decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.