Durr v. Hanover Nat. Bank

• Decision Date: 29 November 1906
• Citation: 42 So. 599,148 Ala. 363
• Parties: DURR ET AL. v. HANOVER NAT. BANK ET AL.
• Court: Alabama Supreme Court

42 So. 599

148 Ala. 363

DURR ET AL. v. HANOVER NAT. BANK ET AL.

Supreme Court of Alabama

November 29, 1906

Appeal from Chancery Court, Shelby County; Richard B. Kelly Chancellor.

"To be officially reported."

Action by the Hanover National Bank and others against John Durr and others. From a decree in favor of complainants, respondents appeal. Reversed and remanded.

It is alleged in the bill that Durr executed certain notes, to secure which he gave a mortgage, and that he made divers payments on said notes, and executed other notes in extension of said indebtedness; and the bill seeks to fasten these notes to the mortgage executed to secure the previous notes and to foreclose the same. Prior to the filing of this bill an agreement was signed by said Durr, setting out the amount of the notes due the various parties complainant, and admitting that said notes were entitled to the benefit of the security of a certain mortgage named therein, and that parties complainant intended to file a bill to foreclose said mortgage, and that it is agreed that the bill shall be filed at the first day of the next term of the chancery court of Shelby county, and that the bill is not filed at the present time at Durr's request, in consideration of which Durr agreed to accept service as of the date of the agreement of a bill to foreclose the mortgage and waived notice of the issue or service of summons on the bill, and further agreed that the cause should be heard and determined at the next term of the chancery court in Shelby county. The bill was filed on September 12, 1901, and the judgment foreclosing the mortgage entered September 13, 1901.

J. M Chilton, for appellants.

Charles P. Jones and W. F. Thetford, Jr., for appellees.

DOWDELL J.

The appeal in this case is prosecuted from the final decree of the chancery court rendered on September 13, 1901. At the time of the submission of the cause for final decree, no answer had been filed to the bill by either of the respondents, nor had decrees pro confesso been taken for want of answer. On this state of the case, clearly the cause was not at issue, and the submission for final decree was premature.

It is insisted by counsel for appellees that the agreement made by the respondent John W. Durr on August 9, 1901, and which constituted a part of complainants' note of submission of the cause, dispensed with the necessity of an answer to the bill or of a decree pro confesso against this respondent. The theory of the insistence is that the agreement, though not an answer in form, is tantamount to an answer, and,...