Beatty v. Brown
| Decision Date | 28 June 1888 |
| Citation | 85 Ala. 209,4 So. 609 |
| Parties | BEATTY v. BROWN. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Tuscaloosa county; THOMAS COBBS Chancellor.
Bill in equity by William M. Beatty against R. R. Brown to have a contract of sale of land declared an equitable mortgage. Complainant appeals.
Martin & McEachin, for appellant.
Hargrove & Van De Graaff and S. A. M. Wood for appellee.
The assignment of error most relied on in this case is that the chancellor erred in not allowing an amendment to be made to the bill of complaint. The only amendment anywhere appearing in the record is one marked "Filed in open court" on September 20, 1886, which was the day on which the final decree in the cause was rendered. We assume this to be the amendment to which reference is made. There are three reasons which severally justify us in overruling this assignment of error: (1) It is nowhere made to appear that this amendment was ever brought to the attention of the chancellor, or that he was requested to allow it, or that he in any manner made a ruling on the subject. The right of amendment is a privilege which must be claimed, and this can be done only by motion or suggestion made to the court. We cannot put the chancellor in error by presuming that he overruled the motion to amend, if such be conceded to be the effect of such a ruling. (2) The statute authorizes such an amendment to be made "at any time before final decree" in the cause,-not afterwards. Code 1886, § 3449. The date of the filing of the amendment is the same as the date of the final decree, September 20, 1886. It does not appear, therefore, that it was even filed upon the rendition of this decree. Hence, if it be conceded that the duty lay on the chancellor to act on the amendment without special request, the record should show that it was filed before the rendition of his final decree. This it fails to show. (3) For still a third reason the record fails to impute error to the chancellor in reference to this matter. There is no testimony in the record which would support the facts averred in such an amendment, and hence it was properly disallowed. The statute authorizes no amendment to a bill to be made except "by striking out or adding new parties, or to meet any state of evidence which will authorize relief." Code 1886, § 3449. This means, and has been construed by this court to mean, any state of evidence already taken in the...
To continue reading
Request your trial
-
Schofield v. Franklin, 6 Div. 15
...may be filed as a matter of right at any time before final decree.' But this right must be claimed before final decree. Beatty v. Brown, 85 Ala. 209, 4 So. 609. The proper procedure for filing an amended answer after submission is outlined in Mooradian v. Canal Ins. Co., 272 Ala. 373, 130 S......
-
Kirby v. Puckett
...allowed even after reversal and remandment on appeal. It is only after a final decree that a motion to amend comes too late. Beatty v. Brown, 85 Ala. 209, 4 So. 609. decree of the chancellor is affirmed. Affirmed. ANDERSON, C.J., and MAYFIELD and SOMERVILLE, JJ., concur. ...
-
Sloss-Sheffield Steel & Iron Co. v. Yancey
... ... was granted to amend as proposed. Chancery Rules 42, 43; ... Civil Code, p. 1540; 31 Cyc. pp. 367, 368, 376; Beatty v ... Brown, 85 Ala. 209, 4 So. 609; Bondurant v ... Sibley, 37 Ala. 565, 570, 571. In the last-cited case ... this court recognized the ... ...
-
Stotts v. Brookfield
...belief that it is his own, cannot be subjected to a trial of his title in an action of replevin for timber cut upon the land. Beatty v. Brown, 85 Ala. 209, 4 South. Rep. 609. But that is not the theory upon which appellant has presented his case, either in his abstract of the facts or in hi......