C.W. Zimmerman Mfg. Co. v. Pugh

• Decision Date: 07 June 1905
• Citation: 39 So. 989
• Parties: C. W. ZIMMERMAN MFG. CO. v. PUGH ET AL.
• Court: Alabama Supreme Court

39 So. 989

C. W. ZIMMERMAN MFG. CO. v. PUGH ET AL.

Supreme Court of Alabama

June 7, 1905

Appeal from Chancery Court, Clarke County; John M. Wilson Chancellor.

"Not officially reported."

Suit by Martha Pugh and others against the C. W. Zimmerman Manufacturing Company. From a decree in favor of complainants, respondent appeals. Affirmed.

J. T Lackland, for appellant.

Wm. D Dunn and Clayton Fascue, for appellees.

SIMPSON J.

The bill in this case was filed by appellees (complainants) for the purpose of having canceled two mortgages on certain lands, on the ground that the debt secured by the mortgages had been fully paid, but alleges, in the alternative, that if the debt has not been fully paid, complainants are willing to pay whatever may be found due upon final hearing. The prayer is that the court ascertain whether or not the debt is fully paid, and, if not, then the balance due, and that upon the payment of said sum respondent be required to cancel the mortgages. The answer denies payment, and alleges that the property has been sold under the mortgages, the amount of sale credited on the note, and that there is an amount still due thereon. The decree states: "I am of opinion that complainants are entitled to relief as prayed, there never having been a sale under the power of a foreclosure of the mortgages. It is therefore ordered, adjudged, and decreed that complainants are entitled to be let in to redeem"--and then goes on to order a reference "to state an account of what is due," directing how the account is to be stated.

The court holds that this is such a final decree as will support an appeal, inasmuch as it declares that there never has been a sale under the power, or a foreclosure of the mortgage, and that complainants are entitled to redeem, so that the result of the reference cannot change the character of the decree, but can affect only the amount to be paid on redemption. The motion to strike out the assignments of error and dismiss the appeal is therefore overruled.

Without going into the contradictions in the testimony, the only testimony in the case which professed to show that there was ever a sale of the lands under the mortgages described in the original bill is that of W. N. Molton, who states that according to the best of his recollection he foreclosed the second mortgage in the spring of 1894. He does not attempt to describe what steps he took to foreclose, so...