United States Savings & Loan Co. v. Leftwich

132 Ala. 131 | Ala. | 1902

SHARPE, J.

— This suit was for ¡the foreclosure of a mortgage 'and tbe main -defense was directed to tbe elimination of -certain portions of tbe mortgage debt claimed to be usurious. On December 12, 1896, a decree was rendered which -sustained that -defense and ordered a •foreclosure for tbe amount which should be found -due .on tbe -mortgage exclusive of what was held to be usurious charges and referred to tbe register tbe -as-certainment of such amount. On April 7, 1899, the parties proceeded. to have the reference executed and on the next day the register reported the amount due on the mortgage according to the terms of the decree as $2,123.54. To this report there was no exception and on the next day the court rendered a decree confirming the report and directing in substance that unless the sum so as: certained should be paid in thirty days, the mortgaged property should be sold for its payment. Accordingly the lands were advertised for sale but in October, 1899, before the sale day, a notice of an appeal by complainant was given. Neither the notice of appeal nor the register’s certificate states which of the two decrees was appealed from, and the only bond is one purporting to have been filed and approved on December 10, 1897, for an appeal from a decree of December 12, 1897. There was no decree of the latter date, but it may be the bond was intended to apply to that of December 12, 1896. If so the appeal was so far abandoned as to render a review of that decree useless for the reason that whether it be found erroneous or not the last decree being subsequent to the appeal could not be reviewed thereon and woul be left standing as conclusive of the amount due on the mortgage which is the only question here sought to be raised. Ordinarily an appellate court will not entertain appeals from the results of its action when its decision will not affect any substantial right of a party in the pending matter. — Little v. Bouers, 134 U. S. 547; San Mateo Co. v. So. Pao. R. Co., 116 U. S. 138; Wood Paper Co. v.Heft, 8 Wall. 333; Freeholders, etc., v. Freeholders, etc., 44 N. J. Law, 438; Ohicago, etc., R. Co. v. Dey, 76 Iowa, 278.

We do not regard the appeal as taken from the last decree since there is neither bond nor security for costs which could be referred to such an appeal, but if it could be so regarded an affirmance would follow for the reason if for no other that the register’s report which forms its basis was not objected to, and objections such as would be necessary to question its correctness in respect of the sum due complainant cannot be made for the first time in this court, nor could the former final decree if treated an unappealed be reviewed on an appeal frbm tbe last decree.—Alexander v. Bates, 26 Ala. 328.

Tbe appeal will, therefore, be dismissed.