It was error to allow complainant to withdraw a paragraph of the bill as amended, without giving respondents notice and hearing on the application, respondents being regularly in court, by their solicitors, at the time. Bevis v. Wishart,30 Ala. App. 568, 10 So.2d 47; Equity Rules, 39-45; Crimm v. Crimm,211 Ala. 13, 99 So. 301. It was error to allow amendment striking one of the parties respondent without notice to respondents in court. Author, supra; Farmers St. Bank v. Inman,208 Ala. 281, 94 So. 105; Smith v. Smith, 212 Ala. 132,101 So. 903; Howton v. Jordon, 154 Ala. 428, 46 So. 234. It was error to grant complainant's application for decree pro confesso without notice or hearing. Ex parte Jones, 246 Ala. 433,20 So.2d 859; Equity Rules 34, 24, 46-48; Ferrell v. Leonard,200 Ala. 285, 76 So. 51; Ex parte Doak, 188 Ala. 406, 66 So. 64. Respondents were not in default and the register was without authority to enter decree pro confesso. Ex parte Anderson,242 Ala. 31, 4 So.2d 420; Street v. Browning, 205 Ala. 110,87 So. 527; Equity Rule 28. It
was error to deny appellants' motion to set aside decree pro confesso and final decree based thereon. Authorities, supra. It was error to render final decree on illegal, irrelevant and incompetent testimony. Holman v. Weed, 248 Ala. 179,21 So.2d 721; Nelson v. Arnold, 248 Ala. 307, 27 So.2d 604; Farrell v. Farrell, 243 Ala. 389, 10 So.2d 153; Chapman v. Cothran,245 Ala. 468, 17 So.2d 677.
Decree pro confesso may be taken at any time after demurrer overruled when no time is given to file answer and answer is not filed forthwith. Equity Rule 24, Code, Tit. 7, (cf. Rule 34); Thacker Creek Coal Co. v. Smith, 238 Ala. 22, 189 So. 69; Pearce v. Kennedy, 232 Ala. 107, 166 So. 805. Allowance or disallowance of withdrawing pleading is within sole discretion of trial court. Sellers v. Valenzuela, 249 Ala. 627,32 So.2d 517; So. Hardware Sup. Co. v. Block Bros., 163 Ala. 81,50 So. 1036; Deholl v. Pim, 219 Ala. 372, 122 So. 320; 49 C.J. 660, 663; 41 Am.Jur. 511. Party in default is not entitled to notice of application for decree pro confesso. Equity Rules, 24, 32; Thacker Creek Coal Co. v. Smith, supra; Pearce v. Kennedy, supra. Register is authorized to grant decrees pro confesso. Equity Rule 32; Thacker Creek Coal Co., supra. Notice of amendments to pleading striking parties not served after decree pro confesso need not be given to parties in default. Equity Rule 28, 1(g); Bell v. Bell, 245 Ala. 478, 17 So.2d 666. Final decree is based on competent testimony found in record. Equity Rule 32. Trial court's action on motion for rehearing is unreviewable. Equity Rule 62; Money v. Galloway, 236 Ala. 55,181 So. 252; Linn v. Linn, 242 Ala. 688, 8 So.2d 187; Scott v. Scott, 247 Ala. 266, 24 So.2d 25.
The decree pro confesso on which rested the final decree from which this appeal has proceeded was entered the thirtieth day after the rendition by this court of a decree overruling the demurrer to the bill of complaint, that appeal having issued from a decree in the circuit court sustaining the demurrer to the bill. That appeal is reported as Sellers v. Valenzuela,249 Ala. 627, 32 So.2d 517.
The primary contention for error now is that the register was without authority to render the decree pro confesso until the expiration of thirty days from the decree here overruling the demurrer and that the final decree under such circumstances was erroneous. The contention cannot be sustained.
This is not a case where a review is sought to revise the discretion of the chancellor in setting aside or refusing to set aside a decree pro confesso after the publishing of the testimony, but is to pronounce void the decree pro confesso rendered under the circumstances stated, on the theory that it was prematurely granted, and to invoke error in the rendition of the final decree resting on such decree pro confesso.
The procedure is regulated by Equity Rule 24, Code 1940, Tit. 7 Appendix, which pertinently provides: "When a demurrer is overruled, the defendant shall forthwith (we italicize) put in a plea or an answer, unless the court gives further time; and on failure to comply * * * a decree pro confesso may be entered * * *".
This provision is substantially the same as in old Chancery Rule 30, and in construing the provision, this court held in Pearce v. Kennedy, 232 Ala. 107, 166 So. 805, that where a demurrer had been overruled, there being no answer offered or filed nor time allowed therefor by the chancellor, a decree pro confesso may be entered without reference to time, and thereafter the case could then proceed to final hearing on the following day. This case exactly controls the instant situation and it would be reading into the rule an unwarranted extension to say that "forthwith" could be construed to mean an extension of the time to plead of thirty days from the rendition of the decree overruling the demurrer.
Ex parte Jones, 246 Ala. 433, 20 So.2d 859, is no governing authority for the instant case. There the lower court overruled
the demurrer and allowed thirty days for further pleading, from which ruling an appeal was duly taken, thus having the effect of suspending the time until final affirmance of the decree in the appellate court; after which, there being no additional order relating to time, the thirty day period allowed by the original decree would be effective as of the date of filing of the certificate of the judgment of affirmance in the lower court.
In the case at bar no "further time" was allowed by the court within which to further plead and, under the rule 24, it was incumbent upon the defendants to plead "forthwith", that is promptly, without delay and as we view it, the Pearce case is directly controlling. See also Thacker Creek Coal Co. v. Smith,238 Ala. 22, 23, 189 So. 69, to the same effect.
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It was error to allow complainant to withdraw a paragraph of the bill as amended, without giving respondents notice and hearing on the application, respondents being regularly in court, by their solicitors, at the time. Bevis v. Wishart,30 Ala. App. 568, 10 So.2d 47; Equity Rules, 39-45; Crimm v. Crimm,211 Ala. 13, 99 So. 301. It was error to allow amendment striking one of the parties respondent without notice to respondents in court. Author, supra; Farmers St. Bank v. Inman,208 Ala. 281, 94 So. 105; Smith v. Smith, 212 Ala. 132,101 So. 903; Howton v. Jordon, 154 Ala. 428, 46 So. 234. It was error to grant complainant's application for decree pro confesso without notice or hearing. Ex parte Jones, 246 Ala. 433,20 So.2d 859; Equity Rules 34, 24, 46-48; Ferrell v. Leonard,200 Ala. 285, 76 So. 51; Ex parte Doak, 188 Ala. 406, 66 So. 64. Respondents were not in default and the register was without authority to enter decree pro confesso. Ex parte Anderson,242 Ala. 31, 4 So.2d 420; Street v. Browning, 205 Ala. 110,87 So. 527; Equity Rule 28. It
was error to deny appellants' motion to set aside decree pro confesso and final decree based thereon. Authorities, supra. It was error to render final decree on illegal, irrelevant and incompetent testimony. Holman v. Weed, 248 Ala. 179,21 So.2d 721; Nelson v. Arnold, 248 Ala. 307, 27 So.2d 604; Farrell v. Farrell, 243 Ala. 389, 10 So.2d 153; Chapman v. Cothran,245 Ala. 468, 17 So.2d 677.
Decree pro confesso may be taken at any time after demurrer overruled when no time is given to file answer and answer is not filed forthwith. Equity Rule 24, Code, Tit. 7, (cf. Rule 34); Thacker Creek Coal Co. v. Smith, 238 Ala. 22, 189 So. 69; Pearce v. Kennedy, 232 Ala. 107, 166 So. 805. Allowance or disallowance of withdrawing pleading is within sole discretion of trial court. Sellers v. Valenzuela, 249 Ala. 627,32 So.2d 517; So. Hardware Sup. Co. v. Block Bros., 163 Ala. 81,50 So. 1036; Deholl v. Pim, 219 Ala. 372, 122 So. 320; 49 C.J. 660, 663; 41 Am.Jur. 511. Party in default is not entitled to notice of application for decree pro confesso. Equity Rules, 24, 32; Thacker Creek Coal Co. v. Smith, supra; Pearce v. Kennedy, supra. Register is authorized to grant decrees pro confesso. Equity Rule 32; Thacker Creek Coal Co., supra. Notice of amendments to pleading striking parties not served after decree pro confesso need not be given to parties in default. Equity Rule 28, 1(g); Bell v. Bell, 245 Ala. 478, 17 So.2d 666. Final decree is based on competent testimony found in record. Equity Rule 32. Trial court's action on motion for rehearing is unreviewable. Equity Rule 62; Money v. Galloway, 236 Ala. 55,181 So. 252; Linn v. Linn, 242 Ala. 688, 8 So.2d 187; Scott v. Scott, 247 Ala. 266, 24 So.2d 25.
The decree pro confesso on which rested the final decree from which this appeal has proceeded was entered the thirtieth day after the rendition by this court of a decree overruling the demurrer to the bill of complaint, that appeal having issued from a decree in the circuit court sustaining the demurrer to the bill. That appeal is reported as Sellers v. Valenzuela,249 Ala. 627, 32 So.2d 517.
The primary contention for error now is that the register was without authority to render the decree pro confesso until the expiration of thirty days from the decree here overruling the demurrer and that the final decree under such circumstances was erroneous. The contention cannot be sustained.
This is not a case where a review is sought to revise the discretion of the chancellor in setting aside or refusing to set aside a decree pro confesso after the publishing of the testimony, but is to pronounce void the decree pro confesso rendered under the circumstances stated, on the theory that it was prematurely granted, and to invoke error in the rendition of the final decree resting on such decree pro confesso.
The procedure is regulated by Equity Rule 24, Code 1940, Tit. 7 Appendix, which pertinently provides: "When a demurrer is overruled, the defendant shall forthwith (we italicize) put in a plea or an answer, unless the court gives further time; and on failure to comply * * * a decree pro confesso may be entered * * *".
This provision is substantially the same as in old Chancery Rule 30, and in construing the provision, this court held in Pearce v. Kennedy, 232 Ala. 107, 166 So. 805, that where a demurrer had been overruled, there being no answer offered or filed nor time allowed therefor by the chancellor, a decree pro confesso may be entered without reference to time, and thereafter the case could then proceed to final hearing on the following day. This case exactly controls the instant situation and it would be reading into the rule an unwarranted extension to say that "forthwith" could be construed to mean an extension of the time to plead of thirty days from the rendition of the decree overruling the demurrer.
Ex parte Jones, 246 Ala. 433, 20 So.2d 859, is no governing authority for the instant case. There the lower court overruled
the demurrer and allowed thirty days for further pleading, from which ruling an appeal was duly taken, thus having the effect of suspending the time until final affirmance of the decree in the appellate court; after which, there being no additional order relating to time, the thirty day period allowed by the original decree would be effective as of the date of filing of the certificate of the judgment of affirmance in the lower court.
In the case at bar no "further time" was allowed by the court within which to further plead and, under the rule 24, it was incumbent upon the defendants to plead "forthwith", that is promptly, without delay and as we view it, the Pearce case is directly controlling. See also Thacker Creek Coal Co. v. Smith,238 Ala. 22, 23, 189 So. 69, to the same effect.
Were we to overlook the stringency of the construction accorded the term in the above Pearce and Thacker cases, we would say, having regard for the context, "forthwith" connotes promptly, without delay and, when applied in Rule 24 to the performance of the act of pleading further, imports that the act shall be performed as soon as by reasonable exertion, confined to the subject, the act might be performed, 17 Words and Phrases, Perm. Ed., page 426, Mandatory Orders or Rules, Pocket Part, leading to the clear result that the performance of the act, so long delayed, fails to meet the demands of the rule.
On the record presented we see no escape from an affirmance of the decree.
The insistence, likewise, cannot be sustained, that the record reflects error in that, before the the last appeal, the trial court allowed the plaintiff to withdraw an amendment to the bill in order that the bill as theretofore filed might be reviewed, as against the then sustained demurrer. The withdrawal of such an amendment was within the discretion of the trial court, Southern Hardware Supply Co. v. Block Bros.,163 Ala. 81, 82, 50 So. 1036; Deholl v. Pim, 219 Ala. 372, 373,122 So. 320; 41 Am. Jur. 511, § 318; 49 C. J. 660, § 935, and this court on that appeal held the bill sufficient, Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517, and we are not disposed to again review the question.
The contention is also unsustainable that the register was without authority to enter the decree pro confesso. When acting within the limits of Rule 24, he had authority to grant such a decree; nor were the defendants, who were then in default, entitled to notice of the plaintiffs' application therefor. Equity Rule 32; Thacker and Pearce cases, supra.
Nor were the defendants entitled to notice of the last amendment to the bill striking one of the original defendants as a party, he not having been served with process. Other reasons aside, the other defendants were in default and no notice was due them. Equity Rule 28, subd. 1(g); Bell v. Bell,245 Ala. 478, 481, 17 So.2d 666.
On the question of the sufficiency of the proof to sustain the decree, not only did the decree rest on a decree pro confesso, Rule 32, but there was sufficient legal evidence on which to rest a proper finding. The trial court is regarded as not having considered evidence which was illegal, irrelevant, incompetent or immaterial, under which circumstances, on appeal, the decree will be pronounced as well founded. Code 1940, Title 7, § 372(1), Cum. Supp.
Finally, no error appears in the ruling of the trial court denying the defendants' application for rehearing, the ruling on said motion not being reviewable on appeal unless the decree had been thereby modified. Rudolph v. Rudolph, Ala.Sup.,36 So.2d 902; Scott v. Scott, 247 Ala. 266, 24 So.2d 25; Linn v. Linn, 242 Ala. 688, 8 So.2d 187; Money v. Galloway, 236 Ala. 55,181 So. 252; Equity Rule 62, Code 1940, Title 7 Appendix.
Our view is that no error is shown.
Affirmed.
BROWN, LIVINGSTON, and STAKELY, JJ., concur.