Clark v. Smith

67 So. 1000, 191 Ala. 166, 1915 Ala. LEXIS 418

• Court: Supreme Court of Alabama
• Decided: January 14, 1915
• Status: Published

Opinion

McCLELLAN, J.

This is a bill whereby a sale for -division, or, failing that, partition, of land among joint owners or tenants in common, is sought. It appears from the averments of the bill that the entire lands lie In Bibb county, Ala.; whereas, this bill was filed in the -chancery court of Jefferson county, Ala.

Jurisdiction in such cases is determined by the location with respect to county of the lands sought to- be sold for division or to be partitioned.—Code, §§ 5203, 5222, and section 5231, as amended by the act of 1909 (Acts Sp. Sess. 1909, p. 124).— Trucks v. Sessions, 189 Ala. 149, 66 South. 79. If the lands constituting a single tract lie in two or more counties, the jurisdiction of the equity courts of any one of the counties may be appropriately invoked to partition or sell for division. Code, § 3093, is not applicable; for the particular jurisdiction under inquiry is governed by the statutory system provided for the sale of lands for division among joint owners or tenants in common. The decisions delivered in Ashurst v. Gigson, 57 Ala. 584, and in Reeves v. Brown, 103 Ala. 537, 15 South. 824, concerned bills wherein the foreclosure of mortgages was sought; aud hence were cases governed, as respected the jurisdiction invoked, by the substance of Code, § 3093.

On the face of the bill, the chancery court of Jefferson county is without jurisdiction in the premises. Any decree entertained on the averments of this bill by the chancery court of Jefferson county would be void for want of jurisdiction.

The decree overruling the demurrer was coram non judice, and void. The appeal is therefore dismissed.

Appeal dismissed.

Anderson, C. J., and Sayre and de Graffenried, JJ. concur.