42 So. 411 | Ala. | 1906
This is a case of a bill of review filed by appellant in the city court of Birmingham to- which a demurrer was sustained, and the appeal is to reverse the decree dismissing the bill.
The bill in the original suit was filed by F. S. White, in a double aspect, to foreclose a mortgage and enforce
A decree pro confesso was rendered against appellant and three other defendants, including her husband, on publication. The other three defendants, who were hold.ers of notes secured by the mortgage sought to be foreclosed, answered, and sought to make their answers cross-bills; but they made no parties, and no proceedings whatever were taken thereon in the cause, except that as to complainant White and some others, including appellant, papers purporting to be appearances to the cross-bill were filed. The cause was submitted for final decree on the pleadings and evidence and decree pro confesso on the original bill against appellant and her husband and two other defendants on publication, and a decree was rendered holding that complainant was entitled to relief, and referring it to the register to report: (1) The amount of the complainant’s debt, represented by two notes held by him, not to include solicitor’s fees. (2) What would be a reasonable attorney’s fee for collecting the notes sued.on by foreclosing the mortgage. (3) The. amounts due the other holders of notes. (4) What would be a reasonable attorney’s fee for collecting the.notes held by them on foreclosure of said mortgage. The register made a report in pursuance of the order, reporting $-1,687.40 of debt due complainant White and $500 as an attorney’s fee; $2,895.37 of debt due Webber, one of the defendants; $9,482 of debt due Robinson, as executor, another defendant; and $4,585.57 as due Cook, another
The difference between a bill of review and an appeal or writ of error is: stated clearly in the case of McCall v. McCurdy, 69 Ala. 65. In the casé of appeal or error “the whole record is drawn -under, consideration -of the court, and advantage may be taken of - all errors or' irregularities which may-have-.intervened in the-course of the-proceedings, -if they have not been waived,” including all such as might be urged on review. “The error of the decree in any respect, Whether it be of law or fact; is open to-inquiry and correction.” And, if error is shown, there is presumption of injury, and to avoid a reversal'it must clearly appear from the record that there-is'no injury: — Deery v. Gray, 5 Wall. (U. S.) 807, 18 L. Ed. 653; Smith v. Shoemaker, 17 Wall. 639, 21 L. Ed. 717. But in-bill of review no mere irregularity, or impropriety, or wrong conclusion from the- evidence, is available to reverse. “There must be error in-substance, of prejudice
It is first insisted in this case that, the complainant being brought in by publication only, no sale should have taken place under 12 months without bond being given as required by section 759 of the code of 1896. The giving of a bond as a preliminary to the execution of the decree is a matter which occurs after the rendition of the decree, and the absence of any record notice of such bond would not be ground for reversal on bill of review. The presumption would be that a bond was given; and, if not given, the remedy would be such as is indicated in Seelye v. Smith, 85 Ala. 32, 4 South. 664; Sayre v. Elyton Land Co., 73 Ala. 85, and Holloy v. Bass' Adm’r, 63 Ala. 387.
It is also urged that no notice was given to complainant of the reference. But, being in default, no notice was necessary, if none was given. — Rule 92 of Chancery Practice. And, besides, such matter would be a mere irregularity, which could not be reached on bill of review. Nor would the omission in the decree of a direction for a copy to be sent the appellant be ground of reversal on review, since it would not on appeal. — Holly v. Bass’ Adm’r, 63 Ala. 387.
"' The objection that the bill was filed in two aspects, and that the relief in each rvould not be identical, is one going to the form of the bill, and would not be good on bill of review, when the question is as to error and injury in the relief granted. But we do not understand the law to be that in alternative aspects the relief must be the same in either, though there are some expressions to that
. It is insisted that the foreclosure of the mortgage and the allowance of an attorney’s fee of $500 is-error apparent, because the husband -did not join in the body of mortgage of the wife as a party,, though signing and acknowledging' it and signing the notes; that the bill in the former suit did not make any averment as to the residence of the husband at the time of the execution of the mortgage; and that it must be presumed that he was a resident of Alabama, and, therefore, that the mortgage was invalid under section 2348 of the code of 1886, which was then in force. This objéction is founded upon the idea that this court, in reviewing a former cause for error apparent, must presume as to the residence of the parties, a fact, in order to establish error; that is, presume that the complainant’s husband was at the date of the making of the mortgage a resident of. the state. The residence of a party is a question of fact as to which the law indulges no presumption, except as a logical conclusion from other facts proved or admitted. It is not to be inferred as a fact in this case that the complainant’s husband resided in Alabama, rather than elsewhere. If the point had been made as to the sufficiency of the mort
. In .this case- there is no- averment that in fact the husband of complainant was a resident of the state. Nor is. it apparent on the record of .the former - suit that the mortgage was not strictly.legal and binding Avithout the husband joining.therein, as then required in .case-of residents of the state.. As the question .of residence of the husband was not raised in the original suit, or the decree’ attacked within 12 months, as was allowable in case of decrees without personal service, it must be assuriied that all .mere irregularities of procedure and all amendable errors are cured, and on a question of error on review it would be improper .to indulge in a presumption of rest-
And though the attorney’s fee allowed in the case might not properly be based on the terms of the mortgage itself, since it may be said it allowed such fee only for exercising the power of sale en pais, the notes contained a provision for the payment of all costs of collection, “including a reasonable attorney’s fees, on failure to pay at maturity,” and the direction to the register was to report “what Avould be a reasonable attorney’s fee for collecting said notes (those held by the complainant) by foreclosing the mortgage securing said notes,” and the report conformed to this direction. We are unable, in a case of this kind, to know the evidence on which the register founded his report, or to revieAv it, if known. A mere wrong conclusion draAAm by the court from the evidence cannot be reversed on a bill of review. We are therefore unable to say that there Avas error apparent in the allowance of the attorney’s fee of $500.
The point taken in argument that the footnote to the original bill was not signed by counsel is entirely one relating to form, easily amended, and exposing the bill at most to a demurrer. And, there being no such objection, the error is considered as Avaived even on appeal.' — Alabama, Warehouse Co. v. Jones, 62 Ala. 550. And on bill of review7 such objections are never available, nor is this error assigned in the bill of review. — McCall v. McCurdy, supra; Story’s Eq. Plead. § 411; 2 Dan. Ch. Prac. 1576.
It is finally urged that it was^error apparent and of substance in decreeing affirmative relief to defendants to
The complainant was the holder of two of a number of notes secured by the same mortgage, and it. was necessary in order to give him complete relief, to determine the entire debt, and the order of priority. This relief could be given as to all the parties on the bill and answers; -for the original bill brought the entire subject under control of the court. The other holders of notes appeared
We are constrained to hold that it is not shown that there is any substantial error apparent in the proceedings of the former suit injurious to the appellant.
The decree of the lower court is affirmed.