42 So. 599 (Ala. 1906), Durr v. Hanover Nat. Bank

CourtSupreme Court of Alabama
Writing for the CourtDOWDELL, J.
JudgeTYSON, C.J., and ANDERSON and McCLELLAN, JJ., concur.
Citation148 Ala. 363,42 So. 599
Date29 November 1906
Docket Number.
PartiesDURR ET AL. v. HANOVER NAT. BANK ET AL.

Page 599

42 So. 599 (Ala. 1906)

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.

Page 600

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...

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9 practice notes
  • 128 So. 443 (Ala. 1930), 6 Div. 490, Ex parte Kelly
    • United States
    • Supreme Court of Alabama
    • January 23, 1930
    ...decree pro confesso, and was therefore not at issue and not ready for submission for a final decree. Durr v. Hanover National Bank, 148 Ala. 363, 42 So. 599; Thomas v. Barnes, 219 Ala. 652, 655, 123 So. 18; 5 Ency. Pl. & Pr. 955, 957. This condition of a record, as a rule, leads to a re......
  • 123 So. 18 (Ala. 1929), 4 Div. 352, Thomas v. Barnes
    • United States
    • Supreme Court of Alabama
    • May 9, 1929
    ...v. Smith, 212 Ala. 132, 101 So. 903; Sloss-Sheffield Steel & Iron Co. v. Yancey, 201 Ala. 200, 77 So. 726; Durr v. Hanover Nat. Bank, 148 Ala. 363, 42 So. We think that, if the parties try the case on pleadings which present their respective theories well understood by all of them, the ......
  • 166 So. 805 (Ala. 1936), 7 Div. 352, Pearce v. Kennedy
    • United States
    • Supreme Court of Alabama
    • February 27, 1936
    ...818; McDonald v. McMahon's Adm'r, 66 Ala. 115. The result is that the submission and decree were premature. Durr v. Hanover National Bank, 148 Ala. 363, 42 So. 599. But the court had jurisdiction of the subject-matter and of the parties, and we are not persuaded such prematurity rendered th......
  • 34 So.2d 214 (Ala. 1948), 8 Div. 407, Hendrix v. Hendrix
    • United States
    • Supreme Court of Alabama
    • March 4, 1948
    ...rest a decree on it subjected the cause to a reversal on appeal. Ex parte O'Barr, 247 Ala. 135, 22 So.2d 912; Durr v. Hanover Nat. Bank, 148 Ala. 363, 42 So. 599; Pearce v. Kennedy, 232 Ala. 107, 166 So. To sustain the use of such depositions learned counsel advances the argument that the w......
  • Request a trial to view additional results
9 cases
  • 128 So. 443 (Ala. 1930), 6 Div. 490, Ex parte Kelly
    • United States
    • Supreme Court of Alabama
    • January 23, 1930
    ...decree pro confesso, and was therefore not at issue and not ready for submission for a final decree. Durr v. Hanover National Bank, 148 Ala. 363, 42 So. 599; Thomas v. Barnes, 219 Ala. 652, 655, 123 So. 18; 5 Ency. Pl. & Pr. 955, 957. This condition of a record, as a rule, leads to a re......
  • 123 So. 18 (Ala. 1929), 4 Div. 352, Thomas v. Barnes
    • United States
    • Supreme Court of Alabama
    • May 9, 1929
    ...v. Smith, 212 Ala. 132, 101 So. 903; Sloss-Sheffield Steel & Iron Co. v. Yancey, 201 Ala. 200, 77 So. 726; Durr v. Hanover Nat. Bank, 148 Ala. 363, 42 So. We think that, if the parties try the case on pleadings which present their respective theories well understood by all of them, the ......
  • 166 So. 805 (Ala. 1936), 7 Div. 352, Pearce v. Kennedy
    • United States
    • Supreme Court of Alabama
    • February 27, 1936
    ...818; McDonald v. McMahon's Adm'r, 66 Ala. 115. The result is that the submission and decree were premature. Durr v. Hanover National Bank, 148 Ala. 363, 42 So. 599. But the court had jurisdiction of the subject-matter and of the parties, and we are not persuaded such prematurity rendered th......
  • 34 So.2d 214 (Ala. 1948), 8 Div. 407, Hendrix v. Hendrix
    • United States
    • Supreme Court of Alabama
    • March 4, 1948
    ...rest a decree on it subjected the cause to a reversal on appeal. Ex parte O'Barr, 247 Ala. 135, 22 So.2d 912; Durr v. Hanover Nat. Bank, 148 Ala. 363, 42 So. 599; Pearce v. Kennedy, 232 Ala. 107, 166 So. To sustain the use of such depositions learned counsel advances the argument that the w......
  • Request a trial to view additional results

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