Opinion
3 Div. 436.
June 10, 1920. Rehearing Denied June 30, 1920.
Appeal from Circuit Court, Montgomery County; Wm. L. Martin, Judge.
John R. Tyson, of Montgomery, for appellant.
Notwithstanding the former opinion in this case, the court erred in granting the relief and disregarding the defensive. Sections 4758-4777, Code 1907; 191 Ala. 238, 68 So. 43; 5 Ency. U.S. S. Rep. 641, and cases cited in notes 72, 73, and 74; Amendment 14, U.S. Const. Complainants have separate and distinct causes of action under separate and distinct liens and cannot recover. 106 Ala. 252, 17 So. 389; 33 Ill. 447; 36 N.J. Eq. 313; 8 Pet. 125, 8 L.Ed. 889; 13 Ency. of P. P. 950. Complainants did not file their suit in time. 191 Ala. 238, 68 South, 43. Appellants were not a party to the proceedings establishing a lien, and are not bound thereby. 5 Ency. U.S. S.C. Rep. 641.
Holloway Hill, of Montgomery, for appellee.
This case has already been thoroughly gone into on a former appeal. 203 Ala. 93, 82 So. 107. That case and the case reported in 99 Ala. 276, 13 So. 612, establishes the equity of the bill. There was no misjoinder or antagonistic joinder of parties. 21 Ala. 813; Sims, Chancery, § 156. The description was sufficient. 131 Ala. 256, 31 So. 26; 194 Ala. 559, 69 So. 598; 79 Ala. 133. The case should be affirmed on these authorities and on the case reported in 94 Ala. 240, 10 So. 157, 14 L.R.A. 305. There was due process of law. 205 U.S. 179, 27 Sup. Ct. 459, 51 L.Ed. 760.
The former appeal in this cause, consequent upon a ruling sustaining the present appellant's demurrer to the bill, is reported in Vesuvius Lumber Co. v. Alabama Fidelity Mortgage Co., 82 So. 107. Upon full original consideration and after review on rehearing, this decree was reversed and the equity of the bill was vindicated. This cause has now progressed to final decree in accordance with the object of the bill, and this appeal results. In the argument for appellant the same propositions are pressed as were unsuccessfully urged to support the previous decree sustaining the demurrer. This court remains convinced of the correctness of the then and now applicable conclusions expressed in the former opinion. Jefferson County Bank v. Barbour, 191 Ala. 238, 68 So. 43, was considered and discriminated in that opinion.
The only matter now insisted upon that does not fall within the influence of the express decision on first appeal is that the determination of the rights of the appellant (respondent) was not in accordance "with due process," for that the appellant was not a party to proceedings at law establishing the appellees' lien, and yet, appellant asserts, its rights are affected thereby. The object of the bill being to have ascertained, declared, and enforced the "priorities" between these parties — as amply stated in the former opinion — the appellant has been accorded an unrestricted hearing, in conformity with settled course of justice, on the issues made; and the fact that the appellees' debt was adjudicated and the lien established in an action at law, to which appellant was not a party, against the College Court Realty Company, neither detracted from nor impaired the appellant's rights under its mortgage on the lots, either before or after the foreclosure sale. Code, § 4755; Vesuvius Lumber Co. v. Alabama Fidelity Co., 203 Ala. 93, 82 So. 107.
The decree is affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.