Clio Banking Co. v. Brock

Citation85 So. 297,204 Ala. 57
Decision Date05 February 1920
Docket Number4 Div. 821
PartiesCLIO BANKING CO. v. BROCK et al.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Bill by C.J. Brock and another against the Clio Banking Company and others to reopen a settlement and purge the account of usury. From a decree for complainants the respondent bank appeals. Reversed and remanded, with directions.

McDowell & McDowell, of Eufaula, and George W. Peach, of Clayton, for appellant.

H.L Martin, of Ozark, for appellees.

SOMERVILLE J.

The final decree in this cause recites that it "was submitted by agreement of the parties in vacation," apparently, on November 23, 1917. The decree was rendered at chambers on February 19, 1918, and filed on the same day.

Under our present judicial system, as established in 1915, circuit courts are empowered to receive submissions of causes whether in law or in equity, and to render judgments and decrees therein, at any time between the first Monday in January and the last Saturday in June, and between the first Monday after July 4th and Christmas Day. Acts 1915, pp. 707 708; Carson v. Sleigh, 201 Ala. 373, 78 So. 229. Since the court is not in vacation during those periods, but is open for the transaction of judicial business, the written consent of the parties required by Chancery Practice rule 79 (Code 1907, vol. 2, p. 1553) for submissions and decrees in vacation is unnecessary, and was properly dispensed with in this case.

Under the present system, also, no formal organization of the court is necessary, where causes are submitted by consent between the periods fixed for peremptory calls; and it is not necessary for the transcript to recite such an organization. Indeed, such a recital would be false and inappropriate upon its face, and, ex necessitate rei, its omission from this transcript was proper.

As stated by counsel for appellant in brief, the decisive question to be determined on this appeal is whether the settlement made by the parties on January 31, 1910, was a bona fide settlement by which complainants' indebtedness to respondent and respondent's interest therein were completely extinguished by complainants' payment of the balance then agreed upon as due; or whether, on the other hand, that settlement was simulated and colorable merely, by reason of some collusive understanding between respondent and the Planters' & Merchants' Bank, of Ozark, and J.E.Z. Riley, and Mrs. Laura Kirkland, who successively loaned the money to complainants upon ostensibly new mortgage securities, but for and at the instance of respondent, in order to purge respondent's demand of its usurious elements--respondent remaining all the while the real creditor and beneficiary of the mortgage securities--so that the final transaction of February 3, 1916, by which complainants executed to respondent the last mortgage in suit, covering their previous indebtedness since January 31, 1910, and also the sum of $4,000 borrowed by them in 1914 to pay off Mrs. Kirkland's mortgage, was in effect as to that $4,000 but a renewal of the original usurious debt of January 31, 1910.

This is the theory of the bill, and, if satisfactorily established by the evidence, it would require the elimination from the present mortgage indebtedness of all items of usury, even those prior to the settlement of January, 1910. The law of such cases was clearly stated and applied in the recent case of Blue v. First National Bank, ...

To continue reading

Request your trial
9 cases
  • Lewis v. Martin
    • United States
    • Alabama Supreme Court
    • 18 Octubre 1923
    ... ... 162, 93 So. 868; ... Cleveland v. Little Cahaba Coal Co., 205 Ala. 369, ... 87 So. 567; Clio Banking Co. v. Brock, 204 Ala. 57, ... 85 So. 297; Gen. Acts 1915, p. 707. It is further ... ...
  • Liverpool & London & Globe Ins. Co. v. Lowe
    • United States
    • Alabama Supreme Court
    • 8 Junio 1922
    ... ... the last Saturday before Christmas Day of every year. Gen ... Acts 1915, p. 707, § 1; Clio Banking Co. v. Brock, ... 204 Ala. 57, 85 So. 297; Cleveland v. Little Cahaba Coal ... Co., 205 ... ...
  • Rudisill Soil Pipe Co. v. Eastham Soil Pipe & Foundry Co.
    • United States
    • Alabama Supreme Court
    • 30 Junio 1923
    ... ... for evading the usury statute. Not so as to bona fide ... novation of the debt. Brock v. Clio Banking Co., 207 ... Ala. 404, 92 So. 805; Id., 204 Ala. 57, 85 So. 297; Blue ... v ... ...
  • Riley v. State
    • United States
    • Alabama Supreme Court
    • 17 Mayo 1923
    ... ... 162, 93 So. 868; Cleveland v. Little Cahaba Coal ... Co., 205 Ala. 369, 87 So. 567; Clio Banking Co. v ... Brock, 204 Ala. 57, 85 So. 297. As pertaining to Dale ... county, the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT