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148 Ala. 378

Hoffman v. Sewell

Supreme Court of Alabama

Decided November 27, 1906

Supreme Court of Alabama · decided 1906-11-27

Bill to Cancel Decree. Appeal from Elmore Chancery Court. Heard before Hon. W. W. Whiteside. Bill by N. B. Sewell and. others against Frances 0. Hoffman and others. From a decree denying a motion to dismiss for want of equity and overruling demurrers to the bill, defendants appeal.

Cited by 3 later decisions — most recently November 1937

3 state decisions

Relies on Larkin v. Mason · Wright v. Phillips · McGlathery v. Richardson Bros. & Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1906-11-27

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McCLELLAN, J.

¶1— Appeal from a decree denying mo-

¶2tion to dismiss for want of equity and overriding demurrers. In our opinion the appellees have mistaken the method of their remedy, which should have been by petition in the pending case, to which they are respondents. Where the object is to' prevent the execution of a decree because of matters outside of, though relatd to, the case in which the decree was rendered, the proper method is by petition for a restraining order, or an order to suspend proceedings in the cause,, upon security given.Wright v. Phillips, 56 Ala. 69; McGlathery v. Richardson, 129 Ala. 657, 29 South. 655. All courts possess the inherent and necessary power to prevent the abuse of their acts and process.Larkin v. Mason, 71 Ala. 227.

¶3The bill in the case at bar makes no case for the cancellation of the decree assailed. Whatever may haire *381been the effect of tbe engagement by Hoffman and Mc-Williams with Peavey to dismiss the cause, the failure to accomplish it before rendition of the decree, the cause then being on submission for decree in vacation by consent, cannot avail to annul the solemn judgment of the court. The register was without authority, had he so attempted, to dismiss a pending cause then in the breast of the chancellor. The conveyance to Peavy by Hoffman and McWilliams, quitclaiming their interest in the realty in question'had no effect, in and of themselves, to withdraw the cause from the jurisdiction to which it had been committed, and of which committal Peavy had actual knowledge.

¶4It follows, from these considerations, that the motion to dismiss should have been granted. The decree is reversed, and one is here rendered dismissing the bill, without prejudice.

¶5Reversed and rendered.

Tyson, C. J., .and Dowdell and Anderson, JJ., concur.
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