a declaratory judgment was valid despite the possible existence of two children whose interest would have been affected by it in the absence of any indication in the record that such children did exist
How later courts described this case
- a declaratory judgment was valid despite the possible existence of two children whose interest would have been affected by it in the absence of any indication in the record that such children did exist
Written by the judges who cited it.
The opinion
On Rehearing.
PER CURIAM.
This application relates to the contention that the two minor children of A. D. Bout-well are necessary parties, and that any judgment in this suit without them is erroneous or void and should be vacated ipso facto by this Court, although no mention is made of any minors or other dependent children in the pleading and there is no demurrer to the bill taking the point. The answers make no mention of the existence of minors or other dependent children.
The respondents in the suit, which is for a declaratory judgment under section 156 et seq., Title 7, Code, are Trammell holding the policy sought to be construed; Robbins who was using the truck covered by the insurance; Mrs. Boutwell the widow of the person killed by the operation of the truck, and Liberty Mutual Insurance Company the insurance carrier for the employer (Mc-Kesson and Robbins, Inc.) of Boutwell under the workmen’s compensation law.
The bill as amended referred to Mrs. Boutwell as the dependent wife of deceased Boütwell, an employee of McKesson and Robbins, and alleged that she became entitled to the benefits of the workmen’s compensation law and as such is entitled to maintain a suit for the death of her husband, and has employed counsel to represent her and through her attorneys has made claim against complainant (as the insurance carrier of Trammell), and has made claim against Trammell and Robbins, the driver of the truck. That Liberty Mutual Insurance Company has paid and is paying workmen compensation benefits to Mrs. Boutwell under its policy, and has become subrogated to certain rights, all as provided by law, against Trammell and Robbins, and has made demand against this complainant (Trammell’s carrier) and Robbins and Trammell, and is thereby attempting to collect from them all benefits it has paid or will pay Mrs. Boutwell. No mention is made of minors or other dependent children. And, as stated in the opinion supra, the bill alleges the existence of an actual controversy between complainant and said Trammell and Robbins as to the obligation, if any, of complainant under the policy on the Trammell truck; and that Liberty Mutual Insurance Company has made demand against complainant and Robbins and Trammell, and is thereby attempting to collect from said parties all benefits which it has paid or will pay in the future to Mrs. Boutwell.
Our attention has not been called to anything in the record showing that Mr. Bout-well left any minor or other dependent children, except as shown in the complaint filed in the circuit court by Liberty Mutual Insurance Company. The summons on it was issued October 9, 1950, which was subsequent to the filing of the original and amended bill in this cause. The summons and complaint allege that plaintiff is Liberty Mutual Insurance Company, who sues *437 for its benefit and for the benefit of Mrs. Allen Boutwell, dependent widow of A. D. Boutwell, deceased, and Shirley Elizabeth Boutwell and James Allen Boutwell, dependent children of said A. D. Boutwell, deceased, within the meaning of the workmen’s compensation law of Alabama. There is no evidence that they were children of deceased, or that they were minors or otherwise dependent upon deceased in whole or in part. Sections 280, 281, 282, Title 26, Code.
We call attention to the fact that section 312, Title 26, Pocket Part, Code, which authorizes a suit by the Liberty Mutual Insurance Company does not provide that such a suit shall be in its name for the use of any one. Those allegations of the summons and complaint appear to be surplus-age.
The record does not show, so far as our attention has been called to it, that any notice was taken during the trial or in the motion for a new trial of the existence of any such dependents or their need to be made parties.
The ninth assignment of error is the only place where any reference was made to any minor dependent children so far as we have found. That assignment did not go to any ruling of the court, but it alleges that it appears from the record that the minor dependent children of A. D. Boutwell were not made parties and that they have an interest in the subject matter. Certainly the bill on its face properly invokes the statute. Section 1S6, supra.
The judgment sought is not void because those children are not made parties, if they exist. We pointed out in the opinion supra that the necessary parties, without whom a valid judgment cannot be rendered, are some at least who are on each side of the controversy, and though one or more may not be included when there are parties who represent the merits of the conflict, the judgment is not void for the want of necessary parties. To sustain that view we cited a number of authorities.
On rehearing we are cited to the case of Brantley v. Brantley, 2 63 So.2d 29 . The bill on its face shows an absence of parties having an interest. A demurrer was addressed to that defect. The Court held that it should have been sustained, and observed that under the mandatory provisions of section 166, Title 7, Code, in such a proceeding the legatees under the will and the heirs at law were necessary parties. We do not understand that to mean that if all persons are made parties who are shown by any of the pleadings to be interested a decree of the court would be invalid. That would be inconsistent with section 166, supra, which not only provides that all persons shall be made parties who have or claim any interest which would be affected by the judgment, but also that “no declaration shall prejudice the rights of persons not parties to the proceeding”. That clause controverts any theory that the judgment would be inoperative as to those who are parties because some others not made a party have an interest in the controversy. We think the proper meaning of the opinion in the Brantley case is that upon a proper showing the court must require an interested person to be made a party, and if the absence of such a party is shown by the bill it is subject to demurrer assigning that ground.
The opinion, supra, of this Court seems to be properly supported by reason and authority and not opposed 'to the holding in the Brantley case; and, therefore, the application for rehearing should be overruled.
Application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur.
. 258 Ala. Sup. 367.