Etowah Mining Co. v. Wills Valley Mining & Mfg. Co.

121 Ala. 672

• Court: Supreme Court of Alabama
• Decided: November 15, 1898
• Status: Published

Opinion

SHAEPE, J.-

— This appeal, as appears from the certificate of the register, the notice of appeal and the security for costs, is alone from the decree dismissing the cross-bill rendered subsequent to the dismissal Of the original bill. The order dismissing the original bill was a final order and not having been appealed from this court is without jurisdiction to review it.—Ones v. Woodstock Iron Co., 90 Ala. 545; Carroll v. Richardson, 87 Ala. 605; Barclay v. Spraggins, 80 Ala. 357. It could not properly be assigned for error here and the joinder in error does not confer the jurisdiction.—Barclay v. Spraggins, supra. A cross-bill being auxiliary to the main cause as a general rule the dismissal of the original bill carries with it the cross-bill. The exception is where the cross-bill shows ground for equitable relief for matters growing out of the subject matter of the original bill -which may uphold the jurisdiction of the court independent of the original bill.—Abels v. Planters and Mer. Ins. Co., 92 Ala. 383; Wilkinson v. Roper, 74 Ala. 140; Continental Ins. Co. v. Webb, 54 Ala. 688.

This cross-bill was exhibited against the Wills Valley Mining and Manufacturing Company alone. The relief prayed is for a construction of the lease and to compel that corporation to take and pay for betterments made and property acquired as incident to the operation of the lease as the original lessors bad by tbe terms -of tbe, lease agreed to do upon its expiration. A bill does not' lie- merely to con'strue a contract.—Lakeview Mining & Mfg. Co. v. Hannon, 93 Ala. 85. Tlie agreement sought to be enforced is an independent stipulation by its terms purporting to bind only tbe original lessors and Avliicb bad no effect to bind tbe Wills Valley Company as their assignee in tbe absence of an agreement on its part. There is no averment of such agreement ■ but the conclusion is alleged that as transferee of the lease that company took it subject to its burdens and is therefore bound' by its stipulation to take and pay for 'the property. A covenant to run with tbe land must relate to and concern tbe land itself and does not extend to agreements of the lessor in respect to personal property nor does it comprehend an agreement to pay for betterments upon the land which the lessee has not bound himself to make nor even those made under such obligation unless the covenantor- has expressly bound his assigns.-Spencer’s Case, 5 Coke’s Rep. 16; Bream v. Dickenson, 2 Humph. 126; Hassen v. Meyer, 81 Ill. 321.

■ Failing to show independent grounds for equitable relief the cross-bill was disposed of by the dismissal of the original bill. An order formally dismissing the cross-bill was not necessary to carry it out of "court though such an order would have been appropriate.—Wyatt v. Galington, 56 Ala. 576; 5 Ency. Pl. & Pr. 667. After such dismissal there was no pending cause and the subsequent orders made in the allowance of an amendment to the cross-bill and in proceedings thereunder Avere improvidentlv made and Avithout effect.—Ringgold v. Emory, 1 Md. 350; Gayer v. Wilson, 139 Ill. 398; 6 Ency. Pl. & Pr. 979. Such orders however Avere without injury to appellants. The decree appealed from properly directed -that the cause be retained for the. settlement of the accounts of-the receiver and for all necessary orders pertaining to the receivership.—Thornton v. Highland Avenue & Belt R. R. Co., 94 Ala. 353.

The decree will be affirmed.

In connection with the submission of this appeal and to be heard with it, there was submitted an application for mandamus to require the vacating of the order of June 30th; 1896, directing the payment of moneys in the hands of the register to the Wills Valley Mining & Mfg. Co. That order was held by this court at a former term to he interlocutory and not- final in its character. The return to the rule nisi 'in that application shows the dismissal of the original bill had on motion of the complainants after they had obtained the order assailed by the application. Such disposition of the cause had the effect to annul that order so far as it directed such payment as if it had never been granted so that nothing can he claimed under it by that company and so that it concludes no one.—Loeb v. Willis, 100 N. Y. 235; Cartmell v. McClaren, 12 Heisk. 41. There is no necessity for further proceedings to vacate it and the application for mandamus will be denied.

The appellants wall pay the costs of the appeal and of the application for mandamus.