Harris v. BarberHarris v. Barber
- Reporters:
- , , ,
- Before:
- Thomas, Gardner, Brown, Knight
*1 So. 160 upon default property right to reclaim the all installment, any in such event in and HARRIS v. BARBER. prior payments as rents to be treated 6 Div. 416. property, the the transaction ‘use of the Supreme form regarded equity mortgage, a Court of Alabama. in as a vendee, of debt. The the Jan. the fering equity, to do will be relieved na condition, the regarded equity in inas forfeiture, redemption be ture of a and Broyles Stove allowed. Barton W. O. & Furniture and 854. We note that sections at recognize right Code this law, vendee, at the election the in sued statutes are writ detinue. These sup ten into such contracts[Italics plied.] Broyles O. In our case of Barton W. 658, 103 Co., 212 Ala. & Furniture Stove pointed out the writer it is Sayre, the that opinion, late the Justice con- sale purchaser conditional under a chattel, tract, when in detinue for the sued substantially relief may the same secure he 7400, 7401 and 7402 as under Sections equity court. under a bill could therefore, are, the conclu We at respondent judge committed sion transfer in his ex motu order error mero cause, objection against and ring this defendant, equity exception of the to the court docket.
side of the en has made a case petitioner of mandamus’ the writ titling him to requiring respondent judge, against transferring said order his revoke
him to docket, equity to have cause to upon cause reinstate said judge to said proceeded in ac docket, there to law law, in such cases made to the cordance provided. opinion under- must be Nothing in this replications pleas, holding that the stood are good bad. We rejoinders were or or questions. with such concerned now not pass suffi- court must pleadings. All hold we ciency all such properly to be dealt is one is, case that the jurisdic- which has law court with in subject-mat- parties, and of the tion
ter. awarded.
Mandamus BROWN, THOMAS,
GARDNER,
JJ., concur. *2 Robinson, K. Brockman and E. J. Jos. Birmingham, appellant.
both of *3 appel- Pettus, Birmingham, Erie
lee. courts, appellate and not courts. First Bank Nat. v. Garri son, 690; Majors al., al. v. Killian et et THOMAS, parte Wright, Justice. 865; Byrum was submitted to So. Co. v. This Hardware case Jenkins Bldg. Supply Co., merits. appeal, and dismiss the Bank, County Valley Colbert Tennessee motion, among things, other was to supra; Telegraph Western Union Co. v. ap- for costs the effect that no Howington, 198 Ala. compliance given in with the stat- peal was al., Griswold Thornton et utes; money deposit only was made that a McCann, King & Owen v. *4 as securi- the trial court with the Clerk of Ala. 471. security ty appeal; of that the for costs for only by ap- appeal signed the costs of was follows that to dis the motion It pellant, or further or without other sureties appeal grounds miss the on the set out n security costs; that no name for or names conditionally; granted above will be surety of the or are certified to this sureties appellant given sixty days (60) is in which record; ap- (cid:127)Court with the and that “The required by give to bond as statute to security for costs his pellant gave no of appeal. County maintain the Colbert v. appeal required by of Ala- as the Statutes Valley Bank, 632, 225 Ala. Tennessee 144 bama.” 803. So. phase As to this of motion the Clerk the For we that the or convenience indicate of the certified this Circuit Court Court to der made in Home Eva Williams v. Own certify as “I that on the follows: further Corporation, 700, Loan ers’ 236 Ala. 184 So. 1938, day July, prayed movant 16th of the 910, fol was on due motion and reads as present appeal for and obtained an the to by attorneys, parties lows : “Come the Alabama;‘, Supreme Court term of the of appeal and motion to dismiss the for the principal Harris is and and that P. H. $50.00 security being want of for costs submitted deposited with the Clerk for cash has been duly briefs and examined under and ¿11 costs, which appeal costs for all of of Court, by stood the it is considered ‘and or Court, appears in this and all of of record granted; dered that said motion be unless hereby certify Clerk of the which I to the appellant security the file this Court for Supreme Court.” by approved costs the Clerk of the Cir security appeal the or Where bond County, sixty cuit of Court Mobile within by appeal the signed‘only costs of is for days (60) from this date.” appeal, no other se party taking the questions The for decision on‘the merits curity given costs is and certified to’ for considered, will not now be pending the statute, appeal pursuant the this Court tó given giving timé- for bond to maintain the be dismissed on due motion. (cid:127)will appeal. provisions of 6131 The § appellee Motion granted conditional- appeals mandatory affecting Code are as ly. Appeals. to this Court of Court the On the Merits costs; “Security This section reads: security The appeal for cost of ‘having may required.—An appeal be taken -when given required by statute, been we con- supersede exe giving bond to the without question by presented sider the the submis- decree, by judgment the the cution of or the sion on merits. such appellant giving, for costs of’ appellamt in the cause The withdraws clerk, approved by regis .appeal, to be the his motion for writ of mandamus and dis- ter, probate; names of the judge the or petition misses said Hence that motion. is surety the or be certified with sureties to ; not before us for consideration. appellate and execu record to the court may against such tion issue sureties question ap The of. overruling the costs of the the costs in such court and t pellan appellee Harris’s demurrer to Bar franscript, against appellant.” the if decided strike, appellant’s, ber’s motion to 986; 6131, Code, page Michie’s Colbert § summary judgment against appellee for a Bank, Valley County 225 Tennessee Ala. v. presented by assignments is as amended 632, 144 So. 803. summary judgment, A motion for error. (§ seq., Code) 10226 et provisions under the statute The 7250 § complaint. only office as a McCar- application serves the Code have to 142 978; 662, sought Ry. White, 39 to be raised. Evans v. Southern ley 144 Ala. So. v. Co., 482, 138; ruling Dorough 295, 32 So. v. Id., 155. 154 45 So. Ala. Sons, 305, 148 42 (De Harrington So. judgment Graffen & Ala. thereupon is a final 254, Sep 557. 265) From this situation Act of Breitling, Ala. 68 So. v. 192 ried by 18, 1915, p. appeal. tember affords no relief. subject (Code, review and is 241, Code, 9549; Adams, Bay 216 Grand Land Co. v. Ala. parte § § 6078; Cooper, Simpson, supra. 235; Cooper v. 113 So. Pow Martin v. Alabama entry judgment The recitals in‘the 76; Lathrop Co., 208 er find are of no avail evidence Co., 207 Co. Lumber Lumber v. Pioneer therefrom, ing assignment such 427) when motion is judg error the conclusion and relates to granted. sitting court a ment of the trial without reporter judgment. will set out jury. Code, 9502; Bridgman v. §§ Doss, Ala.App. Williams by It that mo declared statute 254, Woodward Iron appeal writing on become tions made in Lamar, Floyd Ala.App. So. Code, part of the 9459. Where a record. § Alosi v. Water facts, which motion is tried Co., Ala.App. 630, Works evidence, can supported ‘it must *5 supported by exceptions only the bill of be brought then a We are to decision exception. support must Grand granting ap of court erred in whether the 606, Bay Simpson, 202 Ala. Land Co. v. pellee’s appel motion as amended strike to 548; Mackenson, 231 Dorrough v. 81 So. summary judgment lant’s for motion 431, 575; Surety National Ala. 165 So. against appellee. It is the general rule that’ 654, O’Connell, Ala.App. 16 81 So. motion, Co. v. stricken pleadings not ex are Co., 146; Woodward Iron Williams v. irrelevance, cept prolixity, for frivolous 254, 517. 106 Ala. 17 So. unnecessary repetition. Code, ness or § 9458; Hartwell, Beatty 239, 15 v. appeal, is insisted It that on further So. 164. summary judgment, the rec de-, is It further established every compliance of fact must show ord ap motion to murrer and not strike is the requirements. jurisdictional Such with sufficiency propriate testing method of strictly are construed in the re statutes a pleadings; that motion to strike should Code, 10226, efficiency. quirement § only granted pleadings where Code, are in Michie’s and authorities collected irrelevant, unnecessarily prolix, frivolous, section; Birmingham Trust & same North unnecessarily repeated. May, Sheriff, al., 18, or Savings et Ala. Bank v. Hearn 211 Strickland, 482, 235 et al. Ala. v. 175, 180 in 59 A.L.R. 60. cited So. Bowen, Sibley 222 v. So. exceptions. The is bill of There no 547; Code, 9458. § will presumption reasonable of correctness judgment In the the trial court rulings of the indulged of the in favor
be. there was error. Demurrer would have of Hoffman, Taylor court..-. amendment, opportunity fered the for due 339; City Cleaning Co. v. pointed as proper pleading.’ out such Waterworks deny ap The decree was effect to Wash Bros. Co. v. Johnston unduly pellant process, his due and to burn, Ala.App. limit sum the effect of statute as to Washburn, parte mary provided by Chapter judgments, as Pruitt, Ala.App., Sisson seq. Code et § the cor nothing is to review to There facts. findings rect court judgment circuit court is re- versed, the cause is remanded. a decisions restatement Under the Reversed and remanded. entry proper not evidence is of the minute exception is appeal, taken BROWN, KNIGHT, GARDNER, assigned for ruling error. court JJ., question concur. review the court unable to’