181 So. 775 | Ala. | 1938
Phases of this matter are reported as Metropolitan Life Ins. Co. v. Estes,
In the last appeal, it was held, among other things, that in a bill by mortgagee's transferee, seeking to have an equitable mortgage declared, signatures to which were not acknowledged, the mortgagor was *296 entitled to $2000.00 exemption out of proceeds of sale of homestead, as against the contention that mortgagor was first required to pay, or offer to pay, indebtedness due transferee, as a condition precedent to the allowance of homestead exemption. Code 1923, § 7913.
The facts on which this appeal are based arose on the trial of the motion by Estes for restitution of this $2,000.00 homestead fund. Appellant's counsel states his question as follows:
"The difficulty of the situation arises by virtue of the fact that the former appeal was taken by Mr. Estes without superseding the decree of sale, and hence the decree of sale was carried out and the sale confirmed during the intervening time between the appeal and the decision of the Supreme Court. The appeal bond was filed by Mr. Estes on November 14, 1935, whereas the decree of sale was carried out and the sale made four days later, on November 18, 1935. The sale was confirmed November 20, 1935.
"Appellant contends that it has already paid to Estes the $2000 ordered to be paid by the Supreme Court, in that it purchased the property at the sale at its full value, and that the entire amount of this purchase price was credited against the judgment rendered in the lower court decree against Estes. If the sale had been held and the purchase made in the light of the Supreme Court decision, $2000 of the purchase price would have been paid in cash to Estes, rather than credited, and the balance of $4500 only would have been credited against the judgment debt. As it was, $6,500, the full purchase price, was credited on the judgment, thus giving Estes the benefit of the full value of the property, and now he is seeking a judgment against appellant for an additional $2000.00 in cash. This would amount to double payment.
"The lower court decree which was affirmed, rendered judgment against Estes for $7854.54 plus $151.80 costs. The decree was carried out and the property sold for its full value of $6500. This left a deficiency of $1354.54 plus costs and plus interest since September 25, 1935."
Estes prevailed in the lower court under his motion for restitution for the sum of $2000 in cash in lieu of homestead. Hence the appeal. It is declared that one who pays money on judgment thereafter reversed is entitled to restitution. Carter v. Mitchell,
There is stipulation of counsel that the transcript on a former appeal may be referred to in all respects as though actually embraced into and made a part of this transcript. This Court has the right of reference to former transcripts to illustrate pertinent rulings and to take judicial knowledge of such former case in the same proceeding and decisions therein. "This court judicially knows the contents of its own records." Nashville, Chattanooga St. Louis Railway v. Crosby,
It is urged that there is analogy to be found in the decisions as to bills of review or an original bill in the nature of a bill of review, seeking to vacate a decree for fraud or because of any other circumstance to accord it as being voidable. Sims v. Riggins,
Appellant further urges that the motion for restitution on the part of appellee was unwarranted in that the $2,000 was never actually paid by Estes to the Metropolitan Life Insurance Company. It is further urged as the law that a party who pays money or is dispossessed of property by process on a judgment or decree, afterwards reversed on appeal, is generally entitled, as a right, to restitution of money or for property taken as that the status quo may be restored with respect to rights and advantages previous to the erroneous judgment. Carroll v. Draughon,
The salient facts that enter into a right decision of the question before us are stated in the decrees of the learned trial judge ordering restitution, the final decree on such motion, the decree denying motion to strike and allowing motion for restitution of July 23, 1937, and the decree denying motion to vacate the former decree rendered in the cause on the 23rd day of July, 1937. *297
The motion for restitution was in the same cause and set up subsequent matters to those dealt with on the former appeal and on which former decree rested. Ex parte Robertson, Ala.Sup.,
The same rule is declared in Home Ins. Co. v. Shriner et al., Ala.Sup.,
The foregoing authorities will illustrate the several characters of judgment, order or decree held final and that will support an appeal. Such is the ruling on the motion for restitution before us.
We are not in accord with the view of appellant and the judgment of the trial court is affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.
