BBICKELL, C. J.
-The purpose and prayer of the original bill is to revive and execute a decree of the court of chancery against Oostley, as affirmed against him, and his sureties on the appeal bond, by the judgment of this court, which has become abated by the death of the complainant, in whose favor it was-rendered, and also by the death of Oostley, the original defendant. To the suit in which the decree was rendered, the present complainant was a party defendant, but, as is now averred, was a mere nominal party, that he might concede the right of Towles, in whose favor the decree was rendered, “to control and wind up the partnership business of Wilkinson and Heliana.” The further averment is made, that one-half only of the decree is unpaid, and that this, of right and in equity, is the property of the complainant, Spence.
A court of equity will entertain a bill to carry into execution a decree it has pronounced, when it appears that from some neglect of the parties “ to proceed upon the decree, their rights-have been so embarrassed by subsequent events, that no ordinary process of the court upon the first decree will serve; and it is, therefore, necessary to have another decree of the court, to ascertain and enforce them.” — 2 Dan. Oh. Pr. 1585. The bill may be exhibited by one not a party, or deriving title under a. party to the decree, if he has similar interests, and can not, without an execution of the decree, obtain a determination of his own rights. An instance of a bill of this description' is State v. Mayor, 24 Ala. 701. A decree had been rendered for the abatement of a public nuisance, on a bill filed by the Attorney-General, in the name <5f the State. Citizens whose rights and interests were affected by the nuisance, and who were, therefore, concerned in its abatement, were permitted to intervene for the revivor and enforcement of the decree. And a decree which the complainant has suffered to abate, may be revived at the instance of a defendant, if the complainant or those standing in his right neglect to do it; “for then the rights of the parties are ascertained, and plaintiffs and defendants are equally entitled to the benefit of the decree, and have a right to prosecute it.” — 2 Dan. Oh. Pr. 1539. When an abate[398]*398ment occurs before decree, tlie suit can be revived only by the complainant or those claiming under him; since no one can be compelled to commence, renew, or revive a suit against another. 2 Dan. Ch. Pr. 1539; Griffith v. Bronaugh, 1 Bland Ch. 547. After decree, when the rights of the parties are ascertained, if the defendant has an interest in the execution of the decree, or if he has rights involved which require a revivor, he will be allowed to revive it. — Bensou v. Wolverton, 1 C. E. Green (16 N. J. Eq), 110; Peer v. Cookerow, 2 Beasley, (13 N. J. Eq.), 136. “ The good sense of the rule is, when the defendant can derive a benefit from the further proceeding, he may revive, unless there is a general rule against it.”— Williams v. Cooke, 10 Vesey 406; Griffith v. Bronaugh, supra.
The bill must of necessity be filed in the court in which the decree was rendered. It has rather a dual nature — it is partly an original bill, and partly in the the nature of an original bill, though not strictly original. — Mitf. and Tyler’s Eq. PI. 194. Like a scire faeias to revive a judgment at law, it has something of the form and chai’acteristics of anew, and of the continuation of a former suit. In either case the spice faeias at law, or the bill to revive and enforce the decree, must proceed in the court having the record on which it is founded. There is a case, 1 Atk. 408, referred to in the text books as supporting the proposition, that the bill will lie to carry into execution the judgment of an inferior court of equity, if the jurisdiction of that court is not equal to the purpose. All our courts of equity are of co-equal jurisdiction, each having like authority to revive and enforce its decrees. The decree was not rendered, is not of record, in the court in which the present bill was filed. It remains of record ‘in the court rendering it, having full jurisdiction to revive and carry it into execution, whenever' the jurisdiction is invoked by a proper party, and the ends of justice may require it.. The whole purpose of a bill to revive and enforce a decree, is auxiliary and supplemental. It is the completion of the execution of the decree, and if the bill to revive and carry it into execution were entertained in any other court than that in which the decree was rendered, the unity of the proceedings would Be destroyed.
The parties to the original decree must, as a general rule, be parties to the bill to revive and enforce it. Their presence can not be dispensed with, unless it appears that they can not execute the decree, nor be the objects of its operation. — 2 Dan. Ch. Pr. 1540. The general rule prevailing in a court of equity applies to bills of this character, as to other bills for relief. All persons having a material interest to be affected by the decree must be made parties, not only that a multiplicity of suits may be avoided, and complete justice done, but that there may [399]*399be security in .the performance of the decree and the litigation ■closed, incapable of being re-opened by parties having interests in it, and who are not before the comí.
The original decree was rendered in favor of Towles as administrator of Wilkinson, founded on a demand due from Costley, the defendant, to the partnership of Wilkinson and ICellam. In legal contemplation, the decree is assets, belonging to the estate of Wilkinson, the unpaid balance of which, on the death of Towles, was unadministered, vesting in title, not in his personal representative, but in his successor as administrator when appointed. The presence of the successor as a party to the bill it is sought to dispense with, upon the averment that none had been appointed, and that in equity and right, such successor would have no claim to the unpaid balance, because it is the exclusive property of the complainant. These are matters a successor to Towles must have the right and opportunity of litigating. Of them, in the absence of such successor, there can be no determination which will be final; and if a decree was rendered for the revivor and enforcement of the original decree, there would be much of insecurity in yielding obedience to it. A successor in the administration of Wilkinson’s estate, whenever 'appointed, could not be denied the right to revive and enforce the decree, unless these matters were affirmatively shown in the defense. The decree rendered to which he was not a party, would not be evidence against him, the litigation now involved would be re-opened and upon the want of evidence which, it may be, could now be introduced, or upon the introduction of other and further evidence, a different determination reached, from that which would now be reached. That a successor in the administration has not been appointed, is not a reason or excuse for proceeding to a decree, which must affect, and ought to bind the personal assets. Any party having an interest in the appointment, can procure it. from the court of probate, the court haying authority to confer it on the general administrator or sheriff of the county, if no one having rights in the assets will accept it. — Marshall v. Gayle, 58 Ala. 284; Costephens v. Dean, ante p. 385. It is a fundamental principle of justice, that judicial tribunals must not pass upon and decide rights, unless the parties claiming them have the opportunity to appear and vindicate them.
Free access — add to your briefcase to read the full text and ask questions with AI
BBICKELL, C. J.
-The purpose and prayer of the original bill is to revive and execute a decree of the court of chancery against Oostley, as affirmed against him, and his sureties on the appeal bond, by the judgment of this court, which has become abated by the death of the complainant, in whose favor it was-rendered, and also by the death of Oostley, the original defendant. To the suit in which the decree was rendered, the present complainant was a party defendant, but, as is now averred, was a mere nominal party, that he might concede the right of Towles, in whose favor the decree was rendered, “to control and wind up the partnership business of Wilkinson and Heliana.” The further averment is made, that one-half only of the decree is unpaid, and that this, of right and in equity, is the property of the complainant, Spence.
A court of equity will entertain a bill to carry into execution a decree it has pronounced, when it appears that from some neglect of the parties “ to proceed upon the decree, their rights-have been so embarrassed by subsequent events, that no ordinary process of the court upon the first decree will serve; and it is, therefore, necessary to have another decree of the court, to ascertain and enforce them.” — 2 Dan. Oh. Pr. 1585. The bill may be exhibited by one not a party, or deriving title under a. party to the decree, if he has similar interests, and can not, without an execution of the decree, obtain a determination of his own rights. An instance of a bill of this description' is State v. Mayor, 24 Ala. 701. A decree had been rendered for the abatement of a public nuisance, on a bill filed by the Attorney-General, in the name <5f the State. Citizens whose rights and interests were affected by the nuisance, and who were, therefore, concerned in its abatement, were permitted to intervene for the revivor and enforcement of the decree. And a decree which the complainant has suffered to abate, may be revived at the instance of a defendant, if the complainant or those standing in his right neglect to do it; “for then the rights of the parties are ascertained, and plaintiffs and defendants are equally entitled to the benefit of the decree, and have a right to prosecute it.” — 2 Dan. Oh. Pr. 1539. When an abate[398]*398ment occurs before decree, tlie suit can be revived only by the complainant or those claiming under him; since no one can be compelled to commence, renew, or revive a suit against another. 2 Dan. Ch. Pr. 1539; Griffith v. Bronaugh, 1 Bland Ch. 547. After decree, when the rights of the parties are ascertained, if the defendant has an interest in the execution of the decree, or if he has rights involved which require a revivor, he will be allowed to revive it. — Bensou v. Wolverton, 1 C. E. Green (16 N. J. Eq), 110; Peer v. Cookerow, 2 Beasley, (13 N. J. Eq.), 136. “ The good sense of the rule is, when the defendant can derive a benefit from the further proceeding, he may revive, unless there is a general rule against it.”— Williams v. Cooke, 10 Vesey 406; Griffith v. Bronaugh, supra.
The bill must of necessity be filed in the court in which the decree was rendered. It has rather a dual nature — it is partly an original bill, and partly in the the nature of an original bill, though not strictly original. — Mitf. and Tyler’s Eq. PI. 194. Like a scire faeias to revive a judgment at law, it has something of the form and chai’acteristics of anew, and of the continuation of a former suit. In either case the spice faeias at law, or the bill to revive and enforce the decree, must proceed in the court having the record on which it is founded. There is a case, 1 Atk. 408, referred to in the text books as supporting the proposition, that the bill will lie to carry into execution the judgment of an inferior court of equity, if the jurisdiction of that court is not equal to the purpose. All our courts of equity are of co-equal jurisdiction, each having like authority to revive and enforce its decrees. The decree was not rendered, is not of record, in the court in which the present bill was filed. It remains of record ‘in the court rendering it, having full jurisdiction to revive and carry it into execution, whenever' the jurisdiction is invoked by a proper party, and the ends of justice may require it.. The whole purpose of a bill to revive and enforce a decree, is auxiliary and supplemental. It is the completion of the execution of the decree, and if the bill to revive and carry it into execution were entertained in any other court than that in which the decree was rendered, the unity of the proceedings would Be destroyed.
The parties to the original decree must, as a general rule, be parties to the bill to revive and enforce it. Their presence can not be dispensed with, unless it appears that they can not execute the decree, nor be the objects of its operation. — 2 Dan. Ch. Pr. 1540. The general rule prevailing in a court of equity applies to bills of this character, as to other bills for relief. All persons having a material interest to be affected by the decree must be made parties, not only that a multiplicity of suits may be avoided, and complete justice done, but that there may [399]*399be security in .the performance of the decree and the litigation ■closed, incapable of being re-opened by parties having interests in it, and who are not before the comí.
The original decree was rendered in favor of Towles as administrator of Wilkinson, founded on a demand due from Costley, the defendant, to the partnership of Wilkinson and ICellam. In legal contemplation, the decree is assets, belonging to the estate of Wilkinson, the unpaid balance of which, on the death of Towles, was unadministered, vesting in title, not in his personal representative, but in his successor as administrator when appointed. The presence of the successor as a party to the bill it is sought to dispense with, upon the averment that none had been appointed, and that in equity and right, such successor would have no claim to the unpaid balance, because it is the exclusive property of the complainant. These are matters a successor to Towles must have the right and opportunity of litigating. Of them, in the absence of such successor, there can be no determination which will be final; and if a decree was rendered for the revivor and enforcement of the original decree, there would be much of insecurity in yielding obedience to it. A successor in the administration of Wilkinson’s estate, whenever 'appointed, could not be denied the right to revive and enforce the decree, unless these matters were affirmatively shown in the defense. The decree rendered to which he was not a party, would not be evidence against him, the litigation now involved would be re-opened and upon the want of evidence which, it may be, could now be introduced, or upon the introduction of other and further evidence, a different determination reached, from that which would now be reached. That a successor in the administration has not been appointed, is not a reason or excuse for proceeding to a decree, which must affect, and ought to bind the personal assets. Any party having an interest in the appointment, can procure it. from the court of probate, the court haying authority to confer it on the general administrator or sheriff of the county, if no one having rights in the assets will accept it. — Marshall v. Gayle, 58 Ala. 284; Costephens v. Dean, ante p. 385. It is a fundamental principle of justice, that judicial tribunals must not pass upon and decide rights, unless the parties claiming them have the opportunity to appear and vindicate them. It is the general rule of a court of equity, that a defendant wishing to revive a suit after decree, must give notice to the plaintiff or his representative. — 2 Dan. Ch. Pr. 1540. The only exceptions which can be engrafted on the rule are exceptions of the character already referred to, where the plaintiff has no further interest in the decree, and can not be the object of its operation. When this affirmatively appears on the record, notice to [400]*400the plaintiff may not be necessary. "Whenever it rests upon extrinsic evidence, and may be the matter of controversy, notice is in dispensable.
It is insisted that though the bill may not be maintainable as a bill to revive and enforce the decree, it may be maintained as strictly an original bill, for the recovery of the balance due on the decree as a partnership debt, the right and title to which reside in Spence, as the personal representative of the last, surviving partner. If in any aspect the bill could be maintained upon that ground, it is obvious that it would still be fatally defective for the want of necessary parties. The original demand against Oostley is merged in the decree, which is a new debt payable to, and demandable only by a successor to Towles, in whose favor it was rendered.- — Freeman on Judgments, § 217. If there be any trust arising either from the agreement into which Towles and Spence entered, or because of the state of the partnership accounts, by which Spence would have the superior equity to the unpaid balance of the decree, the trust can not be declared and enforced unless there was a successor to Towles, having the legal title to the decree, before the court. But the bill is framed, and has appropriate allegations for no other purpose than the revivor and enforcement of the decree, and it is unnecessary to consider what rights, if any, the complainant would have, if another case were presented.
The demurrer and the motion to dismiss, and the plea to the jurisdiction, were improperly overruled, and the decree must be reversed and the cause remanded, that a decree sustaining them may be rendered.