Curl v. Putman, 8 Div. 267

• Decision Date: 02 July 1970
• Docket Number: 8 Div. 267
• Parties: In re L. D. CURL v. D. L. PUTMAN. Ex parte L. D. CURL.
• Court: Alabama Supreme Court

Page 475

237 So.2d 475

286 Ala. 85

In re L. D. CURL v. D. L. PUTMAN.

Ex parte L. D. CURL.

8 Div. 267.

Supreme Court of Alabama.

July 2, 1970.

Horace F. Garth, Huntsville, for petitioner.

Smith, Johnston & Walker, Huntsville, for respondent.

LAWSON, Justice.

L. D. Curl filed a detinue suit in statutory form against D. L. Putman.--s 223. (27), Title 7, Code 1940. Putman filed a verified written motion to transfer the suit to equity.--s 153, Title 13, Code 1940. Pursuant to said § 153, Supra, Curl demurred to the motion to test its sufficiency and later, without waiving his demurrer, filed a contraverting affidavit. After a hearing, without ruling on Curl's demurrer, the trial judge, the Honorable David R. Archer, granted Putman's motion to transfer the detinue suit to the equity docket.

Curl then filed in this court an original petition for writ of mandamus to issue to Judge Archer directing that he vacate the judgment transferring the detinue suit to the equity side of the court. Judge Archer waived the issuance of a rule nisi and filed his answer. We held the answer to be insufficient and ordered the issuance of a peremptory writ of mandamus unless, upon receipt of our opinion in the case (Ex parte L. D. Curl, 280 Ala. 571, 196 So.2d 688), Judge Archer entered orders vacating the judgment transferring the detinue suit to equity, restoring the detinue action to the law side of the court and ruling on Curl's demurrer to Putman's motion to transfer.

After receipt of our opinion in Ex parte Curl, Supra, Judge Archer vacated the judgment transferring the detinue suit to the equity side of the court and restored said suit to the law side.

Thereafter, Judge Archer overruled Curl's demurrer to Putman's verified motion to transfer and rendered another judgment again transferring the said detinue suit to the equity docket.

L. D. Curl has filed in this court another original petition for writ of mandamus to be issued to Judge Archer '* * * directing him to sustain the demurrer to the motion to transfer the cause to equity, and directing him to order the cause retransferred to the law side of said Circuit Court; directing him to set aside his order, judgment or decree transferring said cause to equity, and to re-transfer the same back to the law side of said Court; * * *'

Judge Archer has again waived the issuance of a rule nisi and has again filed his answer.

Mandamus is the proper remedy to review an order transferring a cause from the law side to the equity side of the court.--Ex parte Porter, 271 Ala. 44, 122 So.2d 119, and cases cited.

The removal of a cause from the law to the equity side of the docket (§ 153, Title 13, Code 1940), rests upon the assertion of an equitable right of defense, the decision of which would dispose of the cause, and which cannot be disposed of on the law side.--Preuit v. Wallace, 238 Ala. 162, 189 So. 887.

While we have repeatedly held that § 153, Title 13, Code 1940, is remedial in character and must be given a liberal construction to effectuate the purpose for which it was enacted, yet we have just as often held that said section contemplates and requires that the 'motion shall state the equitable right or defense asserted, with the same precision and certainty in averment as is required to state such right in a bill in equity. If this was not so, the court, in passing on a demurrer to the motion, would be without rule, compass, or guide to determine whether or not the averments are sufficient.'--Ex parte Holzer, 219 Ala. 431, 433, 122 So. 421; Ballentine v. Bradley, 236 Ala. 326, 182 So. 399; Ex parte National Union Life Ins. Co., 270 Ala. 578, 120 So.2d 686; Ex parte General Motors Corp., 274 Ala. 360, 149 So.2d 260.

In order to require a judgment at law to transfer a cause to equity under § 153, Supra, the motion must not only withstand such test as if it were an original bill seeking equity, but two other conditions must appear as required by the statute: (1) The equitable right or defense must be sufficient to dispose of the cause, and (2) it cannot have that effect on the law side of the court.

Demurrer was the appropriate method of testing the sufficiency of the motion to transfer.--s 153, Title 13, Code 1940; Ex parte Metropolitan Life Ins. Co., 266 Ala. 551, 98 So.2d 20; Ex parte General Motors Corp., Supra.

On October 14, 1964, A. W. Gibson Construction Company, Inc., sometimes hereinafter referred to as the Gibson Company, executed an instrument in the form of a promissory note and a chattel mortgage. In that instrument, the Gibson Company promised to pay to L. D. Curl, on demand, the sum of $18,684.84, with interest at the rate of six per cent per annum from date. To secure the payment of that sum to Curl, the Gibson Company mortgaged two pieces of heavy road equipment, but the said note-chattel mortgage contained the following provision:

'* * * it being understood, however, that this is a second mortgage, inferior to a certain mortgage this date executed by the undersigned (the Gibson Company), or which will be executed within one week of the date hereof, in favor of The Farmers and Merchants Bank in the principal amount of Ten Thousand ($10,000.00) Dollars.'

The said note-chattel mortgage was filed for record in the office of the Judge of Probate of Madison County on October 15, 1964.

The Gibson Company did not execute a mortgage to the Farmers and Merchants Bank on October 14, 1964, or within one week from that date.

On October 16, 1964, A. W. Gibson, the President of the Gibson Company, executed a chattel mortgage to D. L. Putman, which mortgage covered the same pieces of heavy road equipment described in the note-chattel mortgage executed by the Gibson Company to L. D. Curl on October 14, 1964.

The mortgage from A. W. Gibson to Putman was duly recorded. On December 10, 1964, the Gibson Company executed to D. L. Putman what is referred to as a correction mortgage. This correction mortgage, filed for record on December 10, 1964, was apparently executed because the mortgage of October 16, 1964, was executed by A. W. Gibson rather than by the Gibson Company, which claimed ownership of the chattels, the two pieces of road equipment covered in each of the aforementioned chattel mortgages.

In January of 1965 a notice was published in a daily newspaper in Huntsville wherein D. L. Putman advertised a mortgage foreclosure sale of certain chattels, which included the two pieces of heavy road equipment embraced in the note-chattel mortgage executed by the Gibson Company to L. D. Curl on October 14, 1964. After observing the aforementioned notice of mortgage foreclosure, Curl made a demand upon the Gibson Company for payment of the sum of money evidenced and secured by the note-chattel mortgage under date of October 14, 1964. There being no response to that demand, Curl instituted his detinue suit against Putman, who had taken possession of the aforementioned pieces of heavy road equipment as the mortgagee in the mortgage which A. W. Gibson had executed to him on October 16, 1964, and under the so-called correction mortgage which the Gibson Company had executed to him on December 10, 1964.

The motion as written is not a model of perspicuity; in fact, we are not at all certain just what the pleader had in mind when he prepared it. It seems to us that the drafter of the motion probably intended to seek the transfer of the detinue suit to the equity side of the court in order to reform the mortgage which the Gibson Company executed to L. D. Curl on October 14, 1964, so as to show that mortgage to be inferior to the mortgages held by...