Johnson v. Bell

71 Ala. 258

• Court: Supreme Court of Alabama
• Decided: December 15, 1881
• Status: Published

Opinion

SOMERYILLE, J.

It is objected by appellant’s counsel, and assigned for error, that the chancellor had no authority to grant a rehearing in this cause du/ring vacation, and re-instate it upon the docket of the chancery court to be again tried. Whether the enrollment of such an order, at any time before the second day of the next ensuing term, would not operate to bring the case within the influence of Rule 80 of Chancery Practice, need not be decided. It is enough that the appellant entered upon the second trial, after re-instatement of the cause, without objection, and consented impliedly for the court to pass judgment upon the merits. This would estop her from raising the objection at this time in the appellate court.-Byrd v. McDaniel, 26 Ala. 582; Walker v. Jones, 23 Ala. 448; Hair v. Moody, 9 Ala. 399.

The disposition made by the chancellor of the fund in the hands of the register was, in our judgment, correct. The appellant and the Bells were entitled respectively to one-half of the entire estate of Iiopkins L. ILouck by way of distribution, after the payment of all lawful charges against it, in the hands of the administrator. This interest in the money and ohoses in action was an undivided equitable interest. The compromises made with the administrator and his sureties must enure equally to the benefit of the distributees, taking, of course, per stirpes and not per capita. Equality is equity, and this rule must prevail in the absence of its abrogation by agreement of parties litigant who contract sui juris.

Affirmed.