Choctaw Bank v. Dearmon

• Citation: 134 So. 648,223 Ala. 144
• Decision Date: 23 April 1931
• Docket Number: 2 Div. 980.
• Parties: CHOCTAW BANK ET AL. v. DEARMON.
• Court: Supreme Court of Alabama

134 So. 648

223 Ala. 144

CHOCTAW BANK ET AL. v. DEARMON.

2 Div. 980.

Supreme Court of Alabama

April 23, 1931

Rehearing Denied May 28, 1931.

Appeal from Circuit Court, Choctaw County; T. J. Bedsole, Judge.

Bill to annul a judgment nil dicit and to enjoin enforcement of execution thereon by J. S. Dearmon against the Choctaw Bank and O. B. Christopher, as sheriff of Choctaw County. From a decree denying a motion to dissolve temporary injunction and overruling a demurrer to the bill, respondent appeals.

Reversed and remanded.

Gray &amp Dansby, of Butler, for appellants.

Adams &amp Gillmore, of Grove Hill, for appellee.

BOULDIN J.

The bill is to cancel and annul a judgment nil dicit in a claim suit because of alleged fraud, accident, or mistake in its procurement.

In aid of this main relief, the bill prayed an injunction against proceeding to enforce an execution issued upon the claim bond.

The appeal is from a decree overruling demurrers to the bill and denying a motion to dissolve the temporary injunction after hearing upon bill, answer, and demurrer, with supporting affidavits on both sides.

We deal first with the merits of the case of the claimant in the claim suit, one of the essential elements in a bill of this character.

Choctaw Bank obtained a judgment in the circuit court on a waive note against one Palmer. Execution, issued in due course, was levied upon a Ford automobile in possession of the judgment debtor. On the following day, J. S. Dearmon, complainant in the present suit, interposed his statutory claim to try the right of property. His claim was based upon a mortgage alleged to be held by him at the date of the levy, and given by the judgment debtor. This mortgage was not recorded when the levy was made, but it is averred, and supported by affidavits, that it was given subsequent to the incurring of the indebtedness upon which the judgment was rendered.

The recording statute is for the protection of creditors who may have extended credit on the faith of the debtor's ownership of property. It does not affect mortgages thereafter given, no question of fraud being involved.

The lien of an execution, dating from its levy, is not effective as against the mortgagee in such case. The same rule applies to an attachment lien, and the lien of a recorded judgment. Hence the race of diligence between the parties on the following day to register the judgment and to record the mortgage is unimportant. It does not matter who filed his paper first. Diamond Rubber Co. v. Fourth Nat. Bank, 171 Ala. 425, 55 So. 100; Birmingham News Co. v. Barron G. Collier, 212 Ala. 655, 103 So. 839; Jackson v Wilson Bros., 201 Ala. 529, 78 So. 883; Hill v. Rentz, 201 Ala. 527, 78 So. 881; Mathis v. Thurman, 143 Ala. 560, 39 So. 360; Carew v. Love's Adm'r, 30 Ala. 577; Durden v. McWilliams, 31 Ala. 206.

The failure of the claim affidavit to state that the claim was based on a mortgage, as required by Code, § 10379, would, on objection, render the mortgage inadmissible as evidence. Drennen Co. Dept. Stores v. Brown, 212 Ala. 524, 103 So. 588; Ivey v. Coston & Co., 134 Ala. 259, 32 So. 664; Bennett, Adm'x v. McKee, 144 Ala. 601, 38 So. 129.

But the same statute now provides that the "affidavit may be amended as provided by section 6213 (2965)." The section thus incorporated authorized amendments in matter of form or substance. The omission was, therefore, not jurisdictional, and would not excuse a denial of a day in court, if, without fault or negligence on his part, judgment nil dicit was rendered against the claimant.

Failure to proceed under the four months' statute (Code 1923, § 9521), or to show good cause for not so doing, is no bar to the remedy in equity. The four months' statute is cumulative. Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Alabama Chemical Co. v. Hall, 212 Ala. 8, 101 So. 456.

Touching the matter of fraud, accident, or mistake, relied upon as a ground of equitable relief, the bill avers that after one continuance at the instance of plaintiff, for absence of a witness, claimant being present ready for trial, the case came up a second time when he was also ready for trial, but the cause was again continued. The bill proceeds: "*** And complainant alleges that there was on that occasion an informal discussion of the merits of the case between the Judge and the opposing attorneys, in which discussion was virtually conceded that the Choctaw Bank would be unable to hold said automobile under its execution on the facts as they apparently existed; your complainant alleges that he is not versed in matters of legal procedure, but that he received the impression and understanding from this discussion that unless the attorney for the Choctaw Bank could develop additional evidence, its claim upon the said automobile would not be pressed, and that he, complainant, would be notified if it should be necessary for him to further attend court. Complainant further alleges that the attorney whom he had employed to represent him in the matter left Choctaw County within a short time thereafter; that the said claim suit was docketed and without the knowledge of your complainant, came on for trial on the 11th day of February, 1929; that your complainant knew nothing of the trial, was not represented by any attorney, and in the absence of complainant and...