Darling v. Hanlon
| Decision Date | 23 November 1916 |
| Docket Number | 1 Div. 188 |
| Citation | 73 So. 20,197 Ala. 455 |
| Parties | DARLING et al. v. HANLON. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Mobile County; Norville R. Leigh Special Chancellor.
Bill by Essimena Hanlon against Claire de Riviere Darling and others. From a judgment for complainant, defendants appeal. Judgment reversed, and cause remanded.
George B. Cleveland, Jr., of Mobile, for appellants.
Ervin & McAleer, of Mobile, for appellee.
The bill in this cause was filed by the complainant, seeking a sale of the real estate described in the bill for division among the joint owners; the complainant insisting that she is the owner of a life estate and also a one-third undivided interest in the remainder. This latter interest in the remainder is claimed to have been derived through a deed from one Sabine M. Arnous de Riviere to Emilie A. de Riviere, of date January 23, 1906. The cause was resisted by the appellant Claire de Riviere Darling.
On March 1, 1915, an order was entered submitting the cause for final decree upon the pleadings and proofs, as noted by the register. Thereafter on May 7, 1915, solicitors for the complainant filed a motion to be allowed to amend the note of testimony entered on March 1st by noting thereon, as testimony for complainant, a certified copy of the deed executed by Sabine de Riviere, above referred to. On the hearing of said motion it was ordered that the same be granted and that the note of testimony be amended as prayed for, which was done.
As will be noted, complainant was allowed to amend the note of testimony by the introduction of a certified copy of said deed more than two months after the cause had been submitted for final decree on pleadings and proof. This additional proof (for such it was, as the record nowhere discloses that such evidence had been previously offered) was, it appears, a very material part of complainant's case. The note of testimony was permitted to be amended and the former submission allowed to stand. This in our opinion was reversible error. The submission should first have been set aside, which order might have opened the door to the introduction of additional evidence by either party. The practice of setting aside submissions when the cause has been held for decree, for the purpose of amendment of pleadings or the introduction of additional proof, is one which has been frequently indulged in by chancery courts. Ex parte...
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Federal Land Bank of New Orleans v. Henderson, Black & Merrill Co.
...the register, it is error to permit an amendment to the note of testimony without first setting the submission aside. Darling et al. v. Hanlon, 197 Ala. 455, 73 So. 20; Ex parte State ex rel. Brittain et al., 237 Ala. 154, 186 148. However, we do not think that rule has application to the i......
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Hanover Fire Ins. Co. v. Street
...authority to hold said court, appellant cites the cases of Ex parte City Bank & Trust Co., 200 Ala. 440, 76 So. 372; Darling v. Hanlon, 197 Ala. 455, 73 So. 20. Appellant also relies upon section 160 of the and sections 6719 and 6720 of the Code. There is manifestly no merit in the above-st......
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Potts v. Court of Com'rs of Conecuh County
... ... Sleigh, 78 So. 229, 231; Davidson v. Rice, 78 ... So. 862; Carson v. Sleigh, 77 So. 380, 383; ... Kelley v. Chandler, 75 So. 973, 974; Darling v ... Hanlon, 73 So. 20; Tatum v. Yahn et al., 130 ... Ala. 575, 578, 29 So. 201 ... Failing ... in the proof, the judgment of the ... ...
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Kinney v. White
...pending submission, to the rendition of a final decree such as should have been rendered in the first instance." See, also, Darling v. Hanlon, 197 Ala. 455, 73 So. 20. In instant case, there was no occasion for either amendment of pleading or additional evidence and no effort to this end. T......