Opinion
SC 518.
July 11, 1974. Rehearing Denied August 29, 1974.
Appeal from the Circuit Court, Jefferson County, William C. Barber, J.
Harry B. Cohen, Frank M. Bainbridge, Birmingham, for Beatrice Taylor, individually, etc., appellant.
Amendments to a bill in equity may be filed as a matter of right at any time before the final decree. Equity Rule 28; Equity Rule 28 must be liberally construed; Phillips v. Phillips, 49 Ala. App. 514, 274 So.2d 71, certiorari denied 290 Ala. 370, 274 So.2d 80 (1973). After the Court sustains a demurrer to a bill in equity the complainant afterwards may amend the bill to cure the defect. Echols v. Star Loan Company, 290 Ala. 76, 274 So.2d 51 (1973). A bill in equity should not be dismissed without giving the complainant an opportunity to amend the bill. Mitchell v. Conway, 257 Ala. 648, 60 So.2d 676; Singo v. Brainard, 173 Ala. 64, 55 So. 603. Under Equity Rule 28 amendments should be permitted to cure any defect of multifariousness. Davidson v. Rice, 201 Ala. 508, 78 So. 862; Bentley v. Barnes, 168 Ala. 524, 50 So. 361. A decree sustaining a demurrer to a bill will be reversed when no opportunity to amend the bill was allowed. Pollack v. Haigler, 195 Ala. 522, 70 So. 258; Davidson v. Rice, 201 Ala. 508, 78 So. 862. A representative "spurious" class action may be maintained by borrowers against lenders under the Alabama Small Loan Act. Echols v. Star Loan Company, 290 Ala. 76, 274 So.2d 51 (1973); Equity Rule 31(a)(3). Various class actions against numerous respondents have been upheld by the Supreme Court of Alabama. O'Dell v. State of Alabama, 270 Ala. 236, 117 So.2d 164; Cochran v. State of Alabama, 270 Ala. 440, 119 So.2d 339; Cunningham v. Andress, 267 Ala. 407, 103 So.2d 722. Class actions which present common questions of law and fact may be maintained under the law of Alabama even though the bill does not present a cause for common relief and each party does not have an equal or coextensive interest in the suit. Echols v. Star Loan Company, 290 Ala. 76, 274 So.2d 51 (1973); McClellan v. McClellan, 203 Ala. 514, 84 So. 750; Stoughton v. Cole Supply Co., 273 Ala. 383, 141 So.2d 173. Class actions are expressly provided for by the new Alabama Rules of Civil Procedure which became effective on the 3rd day of July, 1973. Rule 23, Alabama Rules of Civil Procedure (July 3, 1973).
Under the doctrine of judicial estoppel parties are not permitted to assume or assert inconsistent and contradictory positions. 31 C.J.S. "Estoppel," Sec. 117(b), "Judicial Estoppel," pages 623-625; Fiscus v. Young (1942), 243 Ala. 39, 8 So.2d 514, 515. When a case is at an end it is so only because of a final judgment, and an appeal is available from all final judgments. Box v. Metropolitan Life Insurance Co., 232 Ala. 1, 168 So. 216. A court of equity has the power, either on demurrer for multifariousness or on motion or of its own motion up to final decree, to order a severance of combined causes of action. Equity Rule 15.
Sirote, Permutt, Friend Friedman and William G. West, Jr., Birmingham, for Major Finance Co., Inc., a Corp., and others, appellees.
Lee E. Bains, Bessemer, for Dixie Smith Finance Corp., d/b/a Bell-Air Finance Co., and others, appellees.
George I. Case, Jr., Birmingham, for New Finance Co., Inc., and others, appellees.
Edwin A. Strickland, Birmingham, for Shelby Finance Co., Inc., and others, appellees.
Donald B. Sweeney, Jr., Birmingham, for Mutual Finance Corp. of Fourth Avenue, a Corp., appellee.
A decree denying a motion or application for rehearing in equity is not appealable under the Alabama law. Schmidt v. Schmidt, 291 Ala. 543, 283 So.2d 601, (1973); Continental Development Corporation, Inc. v. Vines, 289 Ala. 648, 270 So.2d 661 (1973); Gamble's, Inc. v. Kansas City Title Insurance Co., 283 Ala. 409, 217 So.2d 923 (1969). An application for rehearing in equity rests in the sound discretion of the trial court, and when such discretion is exercised, it is not reviewable, either on appeal or by mandamus. Russell v. Crenshaw, 283 Ala. 59, 214 So.2d 333 (1968); Withers v. Burton, 268 Ala. 365, 106 So.2d 876 (1959); Smith v. Bank of Blountsville, 262 Ala. 65, 77 So.2d 357 1955). The same rules apply to a motion to set aside a dismissal of a cause and a motion for rehearing. Board of Registrars of Russell County v. Matthews, 274 Ala. 73, 145 So.2d 799 (1962); Taylor v. Major Finance Co., Inc., 289 Ala. 458, 268 So.2d 738 (1972). A decree of dismissal without prejudice is a final decree to the extent that it puts an end to the suit then pending, but such decree is not a bar to a subsequent suit for the same cause of action. Alabama Equity Pleading and Practice, by Tilley, Section 186, p. 199; Palmer v. Rucker, 289 Ala. 496, 268 So.2d 733 (1972); Collins v. Smith, 155 Ala. 607, 46 So.2d 986 (1908); Lang's Heirs v. Waring, 25 Ala. 625, 638 (1854); 47 C.J.S. Judgments § 11, p. 37, Notes 28 and 29; Burger In A Hurry, Inc. v. Greene Grove, Inc., 280 Ala. 341, 194 So.2d 90 (1967); Vacalis v. Lowry, 279 Ala. 264, 184 So.2d 345 (1966). When an equity court formally denies an application for rehearing the application has spent its force, and the equity court in its denial has exhausted the exercise of discretion which was vested in such matters. Ex parte Chase Nat. Bank of New York, 233 Ala. 465, 172 So. 653 (1937). When an appeal is dismissed by an appellate court, the appellant is left in the same position as if no appeal had been taken. Federal Deposit Ins. Corp. v. Equitable Life Assur. Soc., 289 Ala. 192, 266 So.2d 752 (1972). The time prescribed by statute for taking an appeal is jurisdictional and an appeal not timely taken will be dismissed either on motion of appellee or ex mero motu by the appellate court. Meeks v. State Farm Mutual Automobile Ins. Co., 286 Ala. 513, 243 So.2d 27 (1971); Gray v. State, 279 Ala. 333, 185 So.2d 125 (1966). There is no provision for the filing of amendments to bills or answers in equity after the rendition of the final decree. Schofield v. Franklin, 276 Ala. 374, 162 So.2d 469 (1964). A petition for mandamus to review a nonappealable decree which is presented and filed for the first time after the submission of a cause on the first appeal thereof comes too late to invite appellate review or consideration thereof; and this is true even if said petition for mandamus was filed along with appellants first application for rehearing. Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So.2d 23 (1963); Preddy v. Herren Sales Co., 215 Ala. 216, 110 So.2d 131 (1926). The dismissal of an appeal vacates the proceedings and leaves the decree of the subordinate court in full force. Dismissal has been said to amount, in effect, to an affirmance. 5 American Jurisprudence 2d, 358, Sec. 930; 5 Corpus Juris Secundum 507, Sec. 1386; Alabama Power Company v. Thompson, 250 Ala. 7, 32 So.2d 795; 9 A.L.R.2d 974; Atlantic American Life Ins. Company v. Hamilton, 48 Ala. App. 169, 263 So.2d 146; Federal Deposit Insurance Corporation v. Equitable Life Assurance Society of U.S., 289 Ala. 192, 266 So.2d 752. The court is without power to grant a rehearing after the expiration of thirty days unless opposing counsel waives the delay, or unless jurisdiction is retained by the decree. Van Schaik v. Goodwyn, 230 Ala. 687, 163 So. 327; Gibson v. Farmers Bank, 218 Ala. 554, 119 So. 664; Ex parte Howard, 225 Ala. 106, 142 So.2d 403; Equity Rule 62; Rules of Civil Procedure, Rule 59(b) and (e). The test of finality of a decree to support an appeal is not whether the cause remains in fieri, in some respects, but whether the decree which has been rendered ascertains and declares these rights. The decree without prejudice to the individually named Complainant, Beatrice Taylor, to the filing of a proper action at law or equity, does not ascertain the rights of the individually named complainant, Beatrice Taylor, against any one of the twenty-seven Respondents in this suit and, therefore, would not support an appeal. However, the decree does determine that a class action for the parties who were not named in the suit, but alleged to be of the same class as the complainant, and who were sought to be drawn into the litigation by the complainant and as against twenty-seven different respondents, could not be maintained and is final as to the maintenance of a class action. Taylor v. Major Finance Co., Inc., 289 Ala. 458, 268 So.2d 738; Vacalis v. Lowery, 279 Ala. 264, 184 So.2d 345; Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So.2d 653; Ex parte Elyton Land Co., 104 Ala. 80, 15 So.2d 939. Assignments of Error 1 and 2 are due to be struck on appellees motion as having been adjudicated on prior appeal. McGeever v. Terre Haute Brewing Co., 201 Ala. 270, 78 So.2d 66; Koonce v. Arnold, 244 Ala. 513, 14 So.2d 513; Taylor v. Major Finance et al., 289 Ala. 458 (pp. 460-462) 268 So.2d 738; Congress of Industrial Organizations v. McAdory, 246 Ala. 198, 20 So.2d 40; cert dis. 325 U.S. 472, 65 S.Ct. 1395, 89 L.Ed. 1741; McDonald v. McDonald, 215 Ala. 179, 110 So. 291. Mandamus will not lie to review a Judicial Act in refusing to grant a motion from which a review by statute is not authorized. Johnson v. Westinghouse, Church, Kerr Co., 209 Ala. 672, 96 So. 884; Ex parte Taylor, 236 Ala. 219, 181 So. 760. Mandamus is not due to issue upon adverse ruling of a nonappealable interlocutory order when matter may be present by appeal after final decree on the merits. Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432; Ex parte Barclay, Jr. et al., 48 Ala. App. 683, 264 So.2d 187. The subject matter of Petition for Writ of Mandamus does not fall within the exception to the rule outlined by this Court permitting a review by mandamus. Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432. No appeal will lie from order denying appellants application for rehearing and motion to set aside a decree as such order did not modify the Courts prior decree. Greer v. Greer, 276 Ala. 421, 163 So.2d 207; City of Decatur v. Mohn, 235 Ala. 640, 180 So.2d 297. The decrees entered by the Court being all interlocutory rulings are not appealable, neither may such ruling be reviewed by mandamus. Taylor v. Major Finance Co. et al., 289 Ala. 458, 268 So.2d 738; Jackson Lumber Co. v. W. T. Smith Lumber Co., 247 Ala. 661, 25 So.2d 853.
Beatrice Taylor, on or about March 25, 1970, filed a class action against Major Finance Company and numerous other companies and individuals engaged in the business of making small loans alleging that the respondents charged usurious interest on loans made to her and the members of the class of borrowers she represented and wrongfully induced the class to execute contracts, notes and mortgages to secure payment of said unlawful loans. The bill also alleged that the respondents, by using harsh collection tactics and coercing the borrowers to renew their loans, were committing acts constituting both a public and private nuisance. This bill was docketed as Case No. 160-555 in the Circuit Court of Jefferson County, in Equity.
Various respondents filed responsive pleadings to the bill as amended including demurrers, a majority of which were addressed to the bill as a whole although a few contained grounds properly addressed to certain aspects of the bill.
On November 9, 1970, the trial court rendered a "final decree" whereby:
1. The separate and several demurrers of the separate and several respondents were separately and severally sustained.
2. The cause was dismissed without prejudice to Beatrice Taylor "to the filing of a proper action in law or in equity."
3. The costs of the action were taxed to the complainant, Beatrice Taylor.
Beatrice Taylor, individually and on behalf of all other people similarly situated, filed an application for rehearing on December 8, 1970.
On March 26, 1971, Beatrice Taylor filed a motion to set aside the final decree and for a severance. On the same day the trial court rendered an "order" whereby the "application for rehearing" and the "motion to set aside final decree and for a severance" were denied.
Beatrice Taylor then took an appeal to this court from the decrees of November 9, 1970, and March 26, 1971. The appeal was docketed here as 6 Div. 899.
This court, on September 14, 1972, dismissed the appeal from the decree of November 9, 1970, on the ground that it was not a final decree and, therefore, not appealable. The appeal from the decree of March 26, 1971, was dismissed because it would not support an appeal in that it did not purport to modify the decree of November 9, 1970. Rehearing was denied on November 9, 1972. Taylor v. Major Finance Company, Inc., 289 Ala. 458, 268 So.2d 738.
On December 18, 1972, Beatrice Taylor filed in the trial court in Case No. 160-555, supra, a "Petition to allow amendment to bill of complaint to permit complainant to proceed individually." Following the filing of certain pleadings by some of the respondents, the trial court on December 20, 1972, rendered an order overruling and denying the petition of Beatrice Taylor filed on December 18, 1972. Costs were taxed against her.
Thereafter, on January 19, 1973, Beatrice Taylor filed on her own behalf and on behalf of all other persons similarly situated a "Petition for Rehearing and for decision in favor of complainant, individually and for and on behalf of all other persons similarly situated." This petition was not directed to the order of December 20, 1972, but was apparently filed for the reasons heretofore stated. The basis upon which this application was filed was the holdings of this court in Echols v. Star Loan Company, and Echols v. O. K. Discount Company, 290 Ala. 76, 274 So.2d 51, which holdings Beatrice Taylor asserted "directly or indirectly reversed the earlier decision of the Supreme Court in this case." The Echols cases were decided on January 11, 1973, and the time for filing application for rehearings with this court in those cases had not expired at the time Beatrice Taylor filed the Petition or Application for Rehearing of instant concern. The trial court rendered an order on the day said Petition was filed retaining jurisdiction thereof until final disposition was made by this court of the Echols cases.
On May 30, 1973, the trial court having been advised by counsel for Beatrice Taylor that applications for rehearing in the Echols cases had been denied by this court on March 8, 1973, set July 20, 1973 as the day on which Beatrice Taylor's petition filed on January 19, 1973, should be heard.
Motions to strike the last mentioned petition were filed by several of the respondents on July 18, 1973. On August 2, 1973, the trial court decreed as follows:
"That the said 'Motion To Set Down For Hearing Pending Petition of Complainant For Decision in Favor of Complainant, Individually, And Also On Behalf Of And For The Use And Benefit Of All Other Persons Similarly Situated' should be, and it hereby is, overruled, denied and stricken, and the costs created by the filing thereof are taxed to Complainant, for which let execution issue."
On August 31, 1973, Beatrice Taylor on behalf of herself and other persons similarly situated filed security for costs of appeal to this court which reads, in part, as follows:
"We, the undersigned, jointly and severally, hereby acknowledge ourselves security for all costs of appeal to the Supreme Court of Alabama from the Decree rendered in the above entitled Cause on the 2nd day of August, 1973; from the Decree rendered in the above styled Cause, on to-wit, November 9, 1970; from the Decree rendered in the above styled Cause, on to-wit, March 26, 1971; from the Decree rendered in the above styled Cause, on to-wit, December 20, 1972; and from each adverse Decree rendered in the above styled Cause against Complainants, separately and severally; and hereby agree to pay all such costs. * * *"
On September 5, 1973, prior to the time a Certificate of Appeal was filed with this court, Beatrice Taylor on her own behalf and on behalf of the class she purported to represent, filed here a "Petition for Mandamus In The Alternative, Or For Certiorari In The Alternative, Or For Other Remedial Writ In The Alternative." We need not delineate its contents at this point in this opinion.
On September 13, 1973, a Certificate of Appeal was filed in this court which was given the same number as the petition filed on September 5, 1973, that is S.C. 518. The Certificate of Appeal shows, like the bond to secure costs of appeal, that Beatrice Taylor, on her own behalf and on behalf of the class, appealed from decrees rendered in Circuit Court, Case No. 160-555, on August 2, 1973, November 9, 1970, March 26, 1971, December 20, 1972, and "from each adverse decree rendered in the above styled cause against complainants, separately and severally, * * *"
On September 25, 1973, the trial judge, the Honorable William C. Barber, filed in this court his demurrer and answer to the "Petition For Mandamus In The Alternative Or For Certiorari In The Alternative, Or For Other Remedial Writ In The Alternative," filed in this court by Beatrice Taylor on September 5, 1973.
The transcript of the record was filed in this court on January 25, 1974, requests for extension of time made by Beatrice Taylor for filing of the transcript having been previously granted. In accord with an order of this court, the record in the cause of Taylor, etc., v. Major Finance Company, Inc., (6 Div. 899), 289 Ala. 458, 268 So.2d 738, was incorporated by reference in the transcript of the record filed in this proceeding on January 25, 1974.
The transcript of the record filed on January 25, 1974, contained four assignments of error. This court on February 4, 1974, granted a motion of the appellant Beatrice Taylor, etc., to amend her assignments of error 3 and 4. Such amendments were made within the time allotted.
As amended the assignments of error of appellant Beatrice Taylor, etc., read:
"1. The court below erred in making and entering its Final Decree of the 9th day of November 1970. (6th Div. 899, R. 59-60, R. 27-37.)
"2. The court below erred in making and entering its Order of the 26th day of March, 1971. (6th Div. 899, R. 68-69, R. 60-62, R. 64-66, R. 66-68.)
"3. The court below erred in ordering, adjudging, and decreeing by its Order of the 20th day of December, 1972, as follows:
'ONE: The said "Petition to Allow Amendments To Bill of Complaint To Permit Complainant to Proceed Individually" as heretofore filed by Complainant on December 18, 1972 should be, and it hereby is, overruled and denied.' (S.C. 518, R. 4-5, R. 2-4.)
"4. The court below erred in ordering, adjudging, and decreeing by its Decree of the 2nd day of August, 1973 as follows:
'ONE: That the said "Motion to Set Down for Hearing Pending Petition of Complainant For Decision In Favor Of Complainant, Individually, and also on Behalf of and For the Use and Benefit of All Other Persons Similarly Situated" should be and it hereby is, overruled, denied and stricken, and the costs created by the filing thereof are taxed to Complainant, for which let execution issue.' " (S.C. 518, R. 22-23, R. 15-18.)
On March 29, 1974, some of the respondents below filed in this court a motion to strike assignments of error 1 and 2 and to dismiss the petition filed by Beatrice Taylor, etc., for Mandamus or Alternative Writ. The cause was submitted in this court on April 9, 1974, "On Motions and on Merits."
The motion to strike assignments of error 1 and 2 is well taken and those assignments will not be considered. They would have this court review a decree rendered on November 9, 1970, considerably more than two years prior to the time this appeal was attempted. The attempted appeal came much too late. Sections 754 and 788, Title 7, Code 1940. See Federal Deposit Ins. Corp. v. Equitable Life Assur. Soc., 289 Ala. 192, 266 So.2d 752.
Assignment of error 3 as amended is also inefficacious. It challenges a decree rendered on December 18, 1972, although no decree was rendered on that date. Perhaps this assignment was intended to be directed to the decree rendered on December 20, 1972. Even if we overlook that inaccuracy of averment and even if it be assumed that the decree of December 20, 1972, would support an appeal timely taken, the appeal or attempted appeal in this case came too late. The taking of an appeal is perfected upon the filing of a good and sufficient surety for costs of appeal. Federal Deposit Ins. Corp. v. Equitable Life Assur. Soc., supra. Here such a bond was not filed until August 31, 1973, much more than six months after the rendition of the decree sought to be reviewed. Sections 754, 788, Title 7, Code 1940; Federal Deposit Ins. Corp. v. Equitable Life Assur. Soc., supra.
In substance assignment of error 4 complains of the action of the trial court in overruling on August 2, 1973, an application for rehearing of a decree rendered on November 9, 1970, which application was not filed until January 19, 1973. The application for rehearing was, of course, filed too late. Equity Rule 62. Moreover, the decree of August 2, 1973, did not modify the decree of October 23, 1970, hence it will not support an appeal. Equity Rule 62; Taylor v. Major Finance Co., Inc., 289 Ala. 458, 268 So.2d 738.
The effort to appeal from the decrees of November 9, 1970 (assignments of error 1 and 2), and the effort to appeal from the decree of December 20, 1972 (assignment of error 3), were not timely and therefore the purported appeals from those decrees will be dismissed ex mero motu. Gray v. State ex rel. Atty. Gen., 279 Ala. 333, 185 So.2d 125; Journequin v. Land, 235 Ala. 29, 177 So. 132. Likewise, the decree of August 2, 1973, not being appealable, is subject to dismissal. Taylor v. Major Finance Co., Inc., 289 Ala. 458, 268 So.2d 738.
The petition for mandamus, certiorari, or other remedial writ in the alternative is presented too late in regard to the decrees of November 9, 1970, March 26, 1971, and December 20, 1972, to even consider whether any such writ would be an appropriate method of review of any of these decrees. Preddy v. Herren Sales Co., 215 Ala. 216, 110 So. 131; Ex parte State ex rel. Denson, 248 Ala. 161, 26 So.2d 563; Nelson v. Darling Shop, 275 Ala. 598, 157 So.2d 23.
As far as we can determine resort is had to the petitions for extraordinary writ in hopes of attaining review of decrees from which appeals were not timely taken. Such is not the function of those writs.
Nor can a decree overruling an application for rehearing which does not modify the original decree be reviewed by such extraordinary writs.
Appeal dismissed.
Petition for extraordinary writs denied.
HEFLIN, C. J., and MERRILL, HARWOOD, MADDOX, and FAULKNER, JJ., concur.