Birmingham Trust & Savings Co. v. Joseph

• Decision Date: 03 June 1937
• Docket Number: 6 Div. 110
• Citation: 234 Ala. 271,175 So. 275
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM TRUST & SAVINGS CO. v. JOSEPH.

175 So. 275

234 Ala. 271

BIRMINGHAM TRUST & SAVINGS CO. v. JOSEPH.

6 Div. 110

Supreme Court of Alabama

June 3, 1937

Appeal from Circuit Court, Jefferson County; J.F. Thompson, Judge.

Action on promissory notes by the Birmingham Trust & Savings Company, as trustee under the will of A.H. Cooper, deceased against T. Joseph. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

Lange Simpson & Brantley, Reid B. Barnes, and Ormond Somerville all of Birmingham, for appellant.

Erle Pettus and Erle Pettus, Jr., both of Birmingham, for appellee.

GARDNER Justice.

The suit is by appellant against appellee on promissory notes.

The sufficiency of plea 7 (appearing in the report of the case) as against demurrers interposed thereto is the only question presented.

The pleader, it is to be observed, seeks to invoke the provisions of what is known as the Deficiency Judgment Act, approved June 24, 1935 (Gen.Acts 1935, p. 184), but no reference is made to any matter of emergency nor to the date of mortgage foreclosure. Appropriate assignments of demurrer take the point.

The above-noted act is emergency legislation, so expressly indicated by the extensive preamble, and expressly declared in its body, as noted by the following:

"Section 9. That this Act, as aforesaid, is declared to be an emergency measure to safeguard the vital interests of the State, and in the public interest and general welfare." And it was so construed by this court in Mutual Building & Loan Association v. Moore, 232 Ala. 488, 169 So. 1, 6, wherein is the expression: "Regardless of the time named in the statute for it to continue, the emergency is a condition to its operation. When that ceases, the act immediately becomes inoperative, though it provides otherwise."

Manifestly, therefore, a defendant seeking to invoke the influence of the act should allege in his plea sufficient facts to disclose its operation. Plea 7 makes no reference to the act, and, as previously observed, contains no averment as to any emergency or the time of the foreclosure. The clear legislative intent was for the protection of the debtor's property from sacrifice at a sale during a period of economic depression. Yet the defendant here merely sets up the inadequacy of price at a foreclosure sale, without any reference whatever to the matter of economic depression, or the existence of any emergency that brought the statute into being. Under the authority of Mutual Building & Loan Association v. Moore, supra, where many cases dealing with emergency legislation are noted and reviewed, the demurrer to plea 7 was due to be sustained, and for the error in ruling to the contrary the judgment must stand reversed.

But counsel for the respective parties argue somewhat extensively upon the more recent opinion of the Supreme Court of the United States in Richmond Mortgage & Loan Corporation v. Wachovia Bank & Trust Co., 57 S.Ct. 338, 81 L.Ed. 552, wherein was upheld a North Carolina statute affecting foreclosure proceedings had after passage of the act, and the matter of recovery of deficiency judgments thereafter. See, also, Richmond Mortgage & Loan Corporation v. Wachovia Bank & Trust Co., 210 N.C. 29, 185 S.E. 482.

The North Carolina statute is wholly independent of any matter of emergency, and the court was careful so to state. "The statute involved in this action is not 'emergency legislation,' nor is its purpose to provide a 'moratorium' for debtors during a temporary period of depression. For this reason, the cases cited by appellant from other jurisdictions are not applicable in the instant case." Richmond Mortgage & Loan Corporation v. Wachovia Bank & Trust Co., 210 N.C. 29, 185 S.E. 482, at page 485.

And as emergency legislation cases were inapplicable there, so the North Carolina statute and the decisions thereon are likewise inapplicable here.

The Legislature of this state has proposed no such statute. The only act passed has relation solely to economic emergency. We are invited into a discussion of comparison of the North Carolina statute with that of our own. But there is no such comparison. They are entirely separate and distinct, and, in the absence of the passage of such a statute here, the court would not be justified in accepting an invitation to engage in a discussion of an unreal and imaginary law.

True, our act fixes a date for its expiration (October 1, 1939), unless earlier terminated by the Legislature. But this was but a legislative prophecy as to the continuance of the emergency, and is a matter for judicial determination. Such was the holding of this court in the Moore Case, supra, fully supported by the authorities generally.

It had been strenuously urged by counsel in some instances that the failure to fix a definite limit for the operation of such emergency legislation renders the law invalid, as illustrated by the following excerpt from In re People (Title & Mortgage Guarantee Co.), 264 N.Y. 69, 190 N.E. 153, 162, 96 A.L.R. 297: "Failure by the Legislature to limit the operation of the law to a definite term does not render the law invalid so long as the conditions which justify the passage of the law remain."

And perhaps the lawmaking body had such question in mind when a period for the limitation of the act was designated. But however that may be, the act being an emergency legislation, the continuance of the emergency is a condition for its operation, and that question, as observed, is a judicial one. Such was the express holding in Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 406, 68 L.Ed. 841, where the bill, filed in October 1922, charged the emergency was at an end, though it appears that the original act had...