114 So. 2d 842 | Ala. | 1959
Appellee's amended bill of complaint sought to have a deed declared to be a mortgage. Appellant's demurrer to the bill as amended was overruled on December 15, 1958, and this appeal was taken on January 13, 1959.
The transcript of the record was filed in this court on March 7, 1959, and appellant's briefs were filed April 3, 1959, in which appellant requested oral argument. On April 22, 1959, appellee filed a document, the body of which reads:
"Comes now the Appellee, and showing that the Appellee will, in any event, desire to amend the bill of complaint in the Trial Court, waives the right to submit a brief on this appeal, and consents that an order be entered remanding the cause to the Circuit Court of Mobile County, Alabama."
Regardless of this waiver and consent, appellant was still entitled to oral argument, and the cause had already been docketed for oral argument at the call of the Third Division in November, 1959.
On September 17, 1959, appellant withdrew his request for oral argument and filed a motion requesting that this court reverse the decree of the lower court, remand the cause, tax the appellee with the costs of the appeal, including a reasonable attorney's fee. Although our action on this appeal gives appellant most of the relief sought, the motion is denied because the relief to which appellant is entitled is forthcoming under our rules.
With the withdrawal of the demand for oral argument by the appellant, and under the waiver and consent previously filed by appellee, the cause was ready for immediate submission on briefs and it was so submitted on September 18, 1959.
Complying with appellee's request, the decree of the lower court is reversed and the cause is remanded and appellee is given 20 days from the receipt of notice of this action from the clerk of this court to amend as she may be advised.
Reversed and remanded.
LAWSON, STAKELY, GOODWYN and COLEMAN, JJ., concur. *642