City of Jasper v. Sanders , 226 Ala. 84 ( 1933 )

I concur in the conclusion and in the opinion in so far as it holds that a bill filed under the statute (section 9905, Code 1923) is a direct attack. The court in such proceeding is expressly empowered by the statute to "consider and determine such title, claim, interest, or incumbrance, and shall, upon the finding of the jury, or upon such consideration and determination, finally adjudge and decree whether the defendant has any right, title, or interest in, or incumbrance upon, such lands, or any part thereof, and what such right, title, interest, or incumbrance is, and in or upon what part of the lands, the same exists; and such decree is binding and conclusive upon all the parties to the suit." Section 9908, Code 1923; Reeder v. Cox, 218 Ala. 182, 118 So. 338; Collier v. Alexander, 138 Ala. 245, 36 So. 367; Rucker v. Jackson,180 Ala. 109, 60 So. 139, Ann. Cas. 1915C, 1058.

The nature of the attack, whether direct or collateral, depends, not upon what is alleged in the pleadings of the particular case, but upon the character of the proceedings and the scope and extent of the jurisdiction conferred upon the court.

The majority opinion in the case at bar approves the holding in Jasper Land Co. v. City of Jasper, 220 Ala. 639,127 So. 210, holding that a bill to quiet title under the statute is a direct attack, and that statutory estoppel cannot be applied where the essential provisions of the statute in respect to notice to the landowners have not been complied with.

So far as the nature of the attack is concerned, there is no difference or sound distinction between an original bill to quiet title brought by the landowner, and a cross-bill filed by such landowner in a proceeding to enforce the lien. If one is a direct attack, the other is also a direct attack.

The cross-bill in Penton v. Brown-Crummer Inv. Co., 222 Ala. 155,131 So. 14, contained all the averments necessary to a bill to quiet title, and the holding in that case, that the attack was collateral, is in conflict with the holding in this case and in Jasper Land Co. v. City of Jasper, supra, and should be overruled. See, also, City of Decatur v. Southern Railway Company, 187 Ala. 364, 65 So. 536; Id., first appeal,183 Ala. 531, 62 So. 855, 48 L.R.A. (N.S.) 231.