Baker v. Citizens Bank of Guntersville

• Decision Date: 14 March 1968
• Docket Number: 8 Div. 185
• Parties: W. D. BAKER v. CITIZENS BANK OF GUNTERSVILLE et al.
• Court: Alabama Supreme Court

Page 601

208 So.2d 601

282 Ala. 33

W. D. BAKER v. CITIZENS BANK OF GUNTERSVILLE et al.

8 Div. 185.

Supreme Court of Alabama.

March 14, 1968.

Clark E. Johnson, Jr., Albertville, for appellant.

Clinton E. Moore, Guntersville, for appellee.

COLEMAN, Justice.

A complainant appeals from a decree in favor of the respondent bank in a suit wherein complainants prayed that the court declare null and void a certain note and mortgage which appellant had executed to the bank.

The trial court declared that the bank held a valid note secured by a valid mortgage on the lands of appellant described on the mortgage. Complainant W. D. Baker appeals.

As stated in his brief, 'It is the Appellant's contention on this appeal that the Trial Court should be reversed because the evidence in this cause clearly demonstrated that the consideration for the execution of the mortgage and note was unlawful.'

There are several complainants and several respondents, but the contest is between the appellant, a mortgagor, and the appellee bank which is the mortgagee.

Appellee appears to argue that there is a conflict in the evidence on the issue whether the consideration was lawful or unlawful; that the trial court's finding is entitled to a presumption of correctness; and, that, because appellant 'did not file a motion for a new trial before the trial judge assigning as grounds for motion . . . that the trial judge's verdict was against the great preponderance of the evidence. . . .,' appellant cannot raise for the first time on this appeal the question of the sufficiency of the evidence to support the findings and decree of the trial court.

In short, appellee contends that, in the absence of a motion for new trial, this court will not review the sufficiency of the evidence to support the finding and decree in the instant case.

In actions at law tried by a jury; Aldridge v. Seaborn, 253 Ala. 603, 46 So.2d 424; Porter v. Alabama Farm Bureau Mutual Cas. Ins. Co., 279 Ala. 499, 504, 187 So.2d 254; and in certain cases in equity where decree is entered on the verdict of a jury; Brintle v. Wood, 223 Ala. 472, 474, 136 So. 803; Hicks v. Allred, Ala., 204 So.2d 813; in the absence of a motion for a new trial timely made this court, on appeal, will not pass on the weight of the evidence nor review the findings of the jury.

In the instant case there was no jury. Appellant could have applied for a rehearing, but no appeal would lie from an order ruling on the application for rehearing unless the order modified the decree; Equity Rule 62; Odem v. McCormack, 266 Ala. 465, 468, 97 So.2d 574; and a decree overruling such an application for rehearing, which does not modify the final decree, is not subject to review on assignments of error on appeal from the final decree; Long v. O'Mary, 270 Ala. 99, 102, 116 So.2d 563; Mize v. Mize, 273 Ala. 369, 141 So.2d 200.

It appears, therefore, that even if appellant had filed a motion for new trial or application for rehearing, and the trial court had denied the motion or application, appellant still could not obtain a review of the ruling of the trial court. For the purpose of review, a motion for new trial would be useless.

On appeals in equity, in cases tried by the court without a jury, we hold that a motion for new trial is not necessary in order for appellant to obtain review of the sufficiency of the evidence to support the decree of the trial court.

We think the following is a correct statement of the rule which governs our review in the instant case:

'The testimony was given ore tenus before the court, and we must, therefore, accord to the judgment of the trial court the same weight and effect that we would give to the verdict of a jury, and must not disturb the court's conclusion on the evidence unless it is plainly erroneous. (Citations Omitted.)

'While we have steadfastly held to the above rule, on appeals to this court, where the evidence was given ore tenus, nevertheless we have, with equal tenacity, held that 'This court has not renounced its duty nor neglected its power to revise the verdicts of juries and the conclusions of trial judges on questions of fact, where, in our opinion, after making all proper allowances and indulging all reasonable intendments in favor of the court below, we reach a clear conclusion that the finding and judgment are wrong.' (Citations Omitted.)

'On this appeal, therefore, we are required to review, and consider for ourselves, the evidence offered upon the hearing, and determine whether, after making all reasonable allowances and indulging all reasonable intendments in favor of the court below, we are clearly of the opinion that the finding and judgment of the trial court are wrong. In doing this, the court is solemnly enjoined to 'proceed with great caution; but it should leave no evident mistake unrighted.' (Citations Omitted.)' American Nat. Bank & Trust Co. v. Powell, 235 Ala. 236, 241, 178 So. 21.

The complainants include W. D. Baker and all of the living children of W. D. Baker and wife, Lizzie Baker, except Lessie Baker Mays who is a respondent. The complainants also include the children of a deceased child of W. D. and Lizzie Baker. Lizzie Baker died January 22, 1957.

The four respondents are the bank; Lessie Baker Mays, alias Leola Mays, who is a daughter of W. D. Baker and Lizzie Baker; M. B. Mays, alias M. R. Mays, who is the husband of Lessie Baker Mays; and also Clarence Mays, who is a brother of M. B. Mays. M. B. Mays is sometimes referred to as Marvin Mays.

The land conveyed by the mortgage in question is the same land which was conveyed to W. D. Baker and his wife, Lizzie Baker, in 1956 prior to her death in 1957.

Complainants allege in paragraph 4 of the bill that on June 22, 1959, there was pending in the Circuit Court or County Court of Marshall County a criminal charge; to-wit, violation of Title 14, § 363, 1940 Code, a felony; against said M. B. Mays and said Lessie Mays, husband and wife, which criminal charges were instituted by the respondent bank. The allegations of paragraph 4 are admitted by the bank.

We understand that M. B. Mays, or his wife Lessie Mays, or both, had owned a certain automobile which they had mortgaged to the bank and that M. B. Mays and Lessie Mays were charged with disposing of the mortgaged automobile in violation of the statute.

On June 22, 1959, appellant, W. D. Baker, and Lessie Mays and her husband, M. B. Mays, executed the mortgage here in question, which conveyed to the bank all the interest of the mortgagors in the land which had been conveyed to W. D. Baker and wife, Lizzie Baker, in 1956. The mortgage recites that the mortgagors, being indebted to the bank in the sum of $3,741.56 evidenced by promissory note of even date with the mortgage, payable $935.92, due each six months after date, plus interest, until paid in full, in consideration thereof and to secure payment of same, the mortgagors convey all their interest in the land upon the conditions stated in the mortgage.

Dr. Couch, president of the bank, testified that prior to June 22, 1959, W. D. Baker and Mrs. Mays came to the bank because of the financial condition of the Mays with the bank; that Mrs. Mays agreed to pay $50.00 a month if we would give her time, and Mr. Baker said he wanted to help her secure an extension on the note and would mortgage his property; ¹ that he, Dr. Couch, started the criminal proceedings; that Moore was representing the bank and was following the instructions of the witness; that the witness does not remember that, on the occasion Mr. Baker and Mrs. Mays came to the bank, anything was said to them about the criminal proceedings and the witness did not agree to anything; that Mr. Baker did not owe the bank any money and was trying to help his daughter.

The mortgage was signed in the office of the attorney, Moore, in Guntersville. Moore testified that he did not remember whether the notes, held by the bank and signed by Leola and Marvin Mays, were turned over to him prior to the arrest of M. B. Mays on a warrant from Tennessee, 'but it was around about the time'; that, after M. B. Mays was arrested on the Tennessee charge, he had another lawyer with whom Moore was associated in contesting the extradition proceedings from Tennessee; that he, Moore, explained to Marvin Mays and wife, Leola Mays, that Moore was attorney for the bank and could not respresent them in anything that concerned the bank but would be associated with the other attorney in contesting the extradition proceedings; that there were several conversations with Marvin Mays and his wife; that they kept promising to make payment on this indebtedness but did not do so and further extensions of time could not be granted without additional security; that when Moore was informed that W. D. Baker would sign a note and mortgage on his real estate, Moore asked Leola Mays if her brothers and sisters would sign the note and mortgage; that Leola Mays informed Moore that they would not sign; that Moore told her 'that if she and her husband and her father would sign the note and mortgage that I was authorized by the bank to give them--renew the note and give them the extension of time'; that 'about 3 or 4 days before the criminal cases against them was (sic) set for trial a discussion came up that if they were tried and convicted and sent to prison, of course, they couldn't make the payments and I (Moore) (Par. Supplied) informed them that as long as they made payments concerning the note that as Special Prosecutor We would agree with their attorney to continue the cases, and I wrote out the note that has been introduced, and that I signed, telling them and it states in the note ² that We would continue the case which was set for trial on Thursday, June 25th, and the statement was that as long as they paid the payments the case would be continued and the Citizens Bank upon payment of the indebtedness would not prosecute them unless forced to do so...