Davis v. Harris

• Decision Date: 26 June 1924
• Docket Number: 6 Div. 967.
• Citation: 211 Ala. 679,101 So. 458
• Parties: DAVIS v. HARRIS ET AL.
• Court: Alabama Supreme Court

101 So. 458

211 Ala. 679

DAVIS v. HARRIS ET AL.

6 Div. 967.

Supreme Court of Alabama

June 26, 1924

Rehearing Denied Oct. 16, 1924.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Ann Harris and Gwilym Lewis against George A. Davis and Margaret A. Davis, to declare conveyances void as fraud on creditors. From a decree for complainants Margaret A Davis appeals. Corrected and affirmed.

L. A Keene and James A. Mitchell, both of Birmingham, for appellant.

Edward T. Rice, of Birmingham, for appellees.

BOULDIN J.

The purpose of the bill is to set aside certain conveyances of real estate from husband to wife for fraud, and subject the property to the payment of the demands of existing creditors of the grantor. The first questions presented for review are the several rulings of the trial court resulting in a refusal to dismiss the cause for failure of nonresident complainants to give security for costs of suit, as required by section 3687, Code of 1907. The record shows the following:

The bill was filed August 29, 1919. It avers the complainants are citizens of Wales. No security for costs was given when bill filed. On September 20, 1919, respondents filed a "demand" that complainants give security for costs. On November 4, 1919, the following order was made and filed:

"In this cause it is ordered that the complainant give security for costs to be approved by the register of this court within 20 days from this date, or that said cause will stand dismissed without further orders from this court."

On February 20, 1920, the solicitor for complainants deposited $25 with the register, who entered on the fee book:

"2/20/20. Rec'd of Edw. T. Rice the sum of twenty-five and 00/100 dollars a/c costs."

On April 19, 1920, respondents filed their motion reciting the order of November 4, 1919, alleging that complainants had not complied therewith by giving security for costs within the time specified therein, and moving a dismissal of the cause. On April 20, 1920, the following decree was entered and filed:

"In this cause, it appearing to the court that heretofore on, to wit, the 4th day of November, 1919, a decree was made and entered by this court ordering the complainant to give security for costs within 20 days from said date, and whereas, it further appearing to the court that the complainants had no notice of said decree, and have since said decree given security for costs as required by said decree, the court is of the opinion that the decree of November 4, 1919, should be set aside, vacated, and annulled, and this cause reinstated. It is therefore ordered, adjudged, and decreed by the court that the decree made and entered on the 4th day of November, 1919, be and hereby is set aside, vacated, and annulled, and this cause reinstated."

The record shows a motion to vacate the last-named order; also a formal answer and hearing on the motion of April 19, 1920; a renewal of the motion to dismiss was made at a later stage, resulting in a refusal to dismiss the cause; finally a motion and order to require additional security for costs, which was given. We deem it unnecessary to set out in detail these several proceedings.

" Nonresidents must Give Security for Costs.-All suits at law or in equity, commenced by or for the use of a nonresident of this state, must be dismissed on motion, if security for the costs, approved by the clerk or register, be not given by such nonresident when the suit is commenced, or within such time thereafter as the court may direct." Code 1907, § 3687.

Under our early statutes, the proceedings to require security for costs were begun by notice given to the plaintiff by the defendant. 1 Brick. Dig. p. 422. Under our present statute, jurisdiction is invoked by a motion in court.

The order of November 4th does not show any motion was made. It was vacated on the recited ground that plaintiff had no notice of the order. To sustain the action of the court, we would, if need be, presume that no motion was made at the time that order was entered. The demand served on plaintiff and filed in the cause would not operate, per se, as a motion under the statute.

If treated as a sufficient order fixing the time within which the nonresident complainants should give security for costs, that portion of the order declaring that, on failure to comply therewith, the cause should stand dismissed without further order was ineffective. The statute clearly states in the alternative that the cause shall be dismissed on motion, if security for costs be not given within such time as the court shall direct. In case time is given, the motion must be made or renewed after the plaintiff is in default by noncompliance. Ex parte Bradshaw, 174 Ala. 243, 57 So. 16. In the very recent case of Daggett v. Boomer, 210 Ala. 673, 99 So. 181, the court said:

"The trial court had a discretionary power to prescribe the time within which the nonresident contestant should give security for cost, and an equally discretionary power to extend the time."

In that case, the time first fixed had expired, and the party had given security the following day, which the court approved by proceeding with the cause. The cause is still in fieri, and the power of the court to direct the time for giving security is still in being. Ex parte Jones, 83 Ala. 587, 3 So. 811; Colley v. Atlanta Brewing & Ice Co., 196 Ala. 374, 72 So. 45.

It is the legal right of the defendant to have the costs secured. Mandamus will be awarded to enforce this right by directing a dismissal of the suit, if security be not given as directed by the trial court in the exercise of a sound judicial discretion. First National Bank v. Cheney, 120 Ala. 117, 23 So. 733.

Security should be required before the costs have largely accumulated. If the party offers security after the time limit has expired, especially if a continuance of the cause results, the court may exercise the same just discretion in imposing terms upon the party in default. We can see no abuse of discretion where the security is actually given, as in this case, before any final motion is made to dismiss. The end of the law is met. A dismissal of the cause would settle nothing on the merits, and would merely encourage a multiplicity of suits, with further delay in the administration of justice. This question was left undecided in the Bradshaw Case, supra.

We may note that taking a deposit for costs by the clerk or register after the time fixed by the court has expired cannot, of course, bind the court; but it is not amiss to receive the deposit, as in the nature of a tender to be considered in guiding the further discretion of the court. There was no error in these rulings.

It is admitted in this cause that, pursuant to a power of attorney executed by these complainants, their real estate had been sold by George A. Davis, and the proceeds, $1,100 had been received therefor, and never paid over. Thereafter, George A. Davis executed to his wife, Margaret A. Davis, the conveyances now attacked as in fraud of complainants, his existing creditors.

Among the defenses set up is a denial of the indebtedness. The substance of this contention is: About 1895, some 20 years before these conveyances, the lands were owned by Thos. R. Lloyd, through whom complainants claim. Wishing to return to Europe, Lloyd borrowed money and became otherwise indebted to George A. Davis, and delivered to Davis all his property, and the title deeds to his lands, accompanied by a power of attorney in writing, granting full power.

-"for me and in my name to take charge of all my property, real and personal, and also all stocks and bonds owned in my name, giving the said George A. Davis full power and authority to dispose of my property as he sees proper, and to do all acts necessary to be done in the premises." It is sought by parol evidence to show that this transaction, accompanied with the deposit of title deeds, created an equitable mortgage in favor of George A. Davis, which persisted until the lands were sold under power of attorney executed in 1913, by complainants, and that George A. Davis was therefore entitled to retain the proceeds in satisfaction of the mortgage debt. There is nothing in Lloyd's power of attorney bearing any resemblance to a mortgage. The doctrine of English chancery, that an equitable mortgage may be created by the deposit of

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