Opinion
1 Div. 96.
December 18, 1919.
Appeal from Circuit Court, Mobile County; Claud A. Grayson, Judge.
Gaillard, Mahorner Arnold, of Mobile, for appellant.
A bill of review assumes that the court had jurisdiction to act, and therefore want of jurisdiction of the decree sought to be reviewed is not ground for a bill. 108 Tenn. 638, 69 S.W. 732; 2 Tenn. Chan. 703; 16 Cyc. 529. By analogy, see 161 Ala. 669; 160 Ala. 202, 49 So. 412; 129 Ala. 305, 30 So. 574. The land involved lies in Baldwin county, and the jurisdiction was in the circuit court of that county. Acts 1915, p. 279. In the alternative, it appears that Chancery Rule 22 and section 3104, Code 1907, were complied with. 201 Ala. 454, 78 So. 832; sections 3170-3173, Code 1907.
Smiths, Young Leigh, of Mobile, for appellee.
The intention of the act (Acts 1915, p. 279) was that all matters were consolidated into the circuit, and no other court has jurisdiction. 200 Ala. 440, 76 So. 372. No jurisdiction of the person of complainant was had in this cause. Acts 1915, 604. If the decree was void, the court can and should vacate; 200 Ala. 440, 76 So. 372; 128 Ala. 649, 30 So. 630; 3 Stewart, 288; 9 Ala. 339; 5 Ala. 562; 18 Ala. 619; 30 Ala. 83; 80 Ala. 247; 90 Ala. 462, 8 So. 36. Under the prayer for general relief, the decree should be set aside. 110 Miss. 805, 71 So. 1. The bill was not multifarious. Section 3095, Code 1907; 76 Ala. 151.
Prior to Acts of 1915, p. 279, the Thirteenth district of the Southwestern chancery division was composed of Mobile and Baldwin counties; and by the provisions of said act the chancery court of Baldwin county was consolidated into the circuit court of said county. By the consolidating act above referred to it was provided:
"That all the papers, books, files and records of every kind belonging to, or on file in any court hereby consolidated into the circuit court shall be transferred to and become a part of the papers, files, books and records of the circuit court and all causes, or proceedings of every kind pending in any court hereby consolidated into the circuit court shall proceed to final judgment therein as though they had been begun in the circuit court in the first instance." Section 3.
There was, of course, prior to this act a chancery court for Baldwin county, which was, however, for convenience, held at Mobile; and by the express provisions of the foregoing act all causes pending in said chancery court of Baldwin county were to be transferred to, and become a part of, the records and files of the circuit court of said county, which had been consolidated with said chancery court. Section 4 of the act provides for the issuance of process by the clerk or register of the circuit court as to pending causes, and for a perfect exemplification and record of said causes in the circuit court.
The bill in the present case shows that the final decree here sought to be vacated was rendered upon a bill filed against this complainant and other nonresidents concerning the quieting of title to real estate situated in Baldwin county, which suit was pending in said chancery court of said county at the time the consolidating act became effective, to wit, at midnight of January 14, 1917. Ex parte City Bank Trust Co., 200 Ala. 440, 76 So. 372. The bill also shows that subsequent to said change a decree pro confesso was rendered by the circuit court of Mobile county, and a final decree rendered in the cause by said court on April 19, 1917.
Under the express provision of the above-cited act, the cause should have been transferred to the circuit court of Baldwin county. It must be assumed that the Legislature had cognizance of this situation, and intended precisely what they have so plainly stated in the language of the act.
The circuit court of Mobile county was, for the reasons above disclosed, without jurisdiction of said cause, and the decree rendered was therefore void. Patton v. State, 160 Ala. 111, 49 So. 809; L. N. R. R. Co. v. Grant, 153 Ala. 112, 45 So. 226; Kidd v. Burke, 142 Ala. 625, 38 So. 241; Ex parte City Bank Trust Co., supra. Indeed, that the decree is void is not a controverted question on this appeal. Counsel for appellants concede the invalidity thereof, but insist that the bill in this case is styled as a bill of review, and that such a bill will not lie to call in question a void judgment or decree, citing in support of such contention Donaldson v. Nealis, 108 Tenn. 638, 60 S.W. 732.
This presents, however, a matter entirely immaterial and not necessary to be here considered. The bill is filed in the circuit court of Mobile county, in which court a void decree was rendered affecting the rights of this complainant, and that court is the proper court to vacate the same, it matters not in what manner the bill may be styled by the pleader, or what label it may bear. It is properly filed in the proper court, and states all essential facts for relief.
"It is well settled that, where a decree, void for want of jurisdiction, has been rendered, the court rendering it possesses inherent power, and should on motion vacate said decree. It is a nullity, and the court may at any subsequent term vacate it." Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184; Hobson Starnes Coal Co. v. Alabama Coal Coke Co., 189 Ala. 481, 66 So. 622; Ex parte City Bank Trust Co., supra.
The fact that complainant, in addition to the appropriate prayer, also prayed that it be adjudged that he has a good title, does not render the bill demurrable because he seeks this unwarranted relief; the bill in other respects being entirely sufficient and containing the proper prayer. Wilks v. Wilks, 176 Ala. 151, 57 So. 776.
The demurrer was properly overruled, and the decree will be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.