Dewberry v. Bank of Standing Rock

• Decision Date: 11 May 1933
• Docket Number: 5 Div. 122.
• Citation: 150 So. 463,227 Ala. 484
• Parties: DEWBERRY et al. v. BANK OF STANDING ROCK et al.
• Court: Alabama Supreme Court

150 So. 463

227 Ala. 484

DEWBERRY et al. v. BANK OF STANDING ROCK et al.

5 Div. 122.

Supreme Court of Alabama

May 11, 1933

Rehearing Denied June 22, 1933.

Further Rehearing Denied Nov. 9, 1933.

Appeal from Circuit Court, Chambers County; W. B. Bowling, Judge.

Bill in equity by G. W. Dewberry and Lola Dewberry against the Bank of Standing Rock and C. E. Hines.From a decree dismissing the bill, complainants appeal.

Reversed and remanded.

Walter S. Smith, of Birmingham, for appellants.

Denson & Denson, of Opelika, for appellees.

THOMAS Justice.

The bill sought relief by way of accounting, discovery cancellation of two mortgages, and foreclosure deeds of the husband and wife's lands, and in the alternative redemption by offer to pay the sum found due respondents.

The original bill was filed August 23, 1928; the mortgages were of dates of February 20 and September 25, 1924; the two foreclosure deeds were of date of May 28 1927.The bill as amended was in several aspects-averring payment, charged fraud in procuring the mortgages that rendered same null and void; sought discovery and accounting, cancellation, redemption, and general relief.

It was averred that on written demand the possession was surrendered and that the respondents are now in possession, and have been since delivery of possession after the alleged foreclosure.

There were answers presenting issues of fact on the several phases, and after the evidence was taken there was a decree for the respondents, and the bill was dismissed at the cost of the complainants; hence the appeal by each of the complainants.

The specific matters complained of are the two mortgages we have indicated as securing an alleged indebtedness of $3,539.04 and $726.06; of the former it is alleged there was fraud in procuring the signature, and the wife's land was made to secure the husband's debt; the latter embraced the property of the wife and security for the husband's debts.

Interrogatories were exhibited to respondent Hines, calling for answer under section 6570, Code of 1928, that was cumulative of the discovery sought by the bill.Ex parte Kelly(Kelly v. Carmichael),221 Ala. 339, 128 So. 443;Rosenau v. Powell,173 Ala. 123, 55 So. 789;Goodall-Brown & Co. et al. v. Ray,168 Ala. 350, 53 So. 137.The final decree was rendered denying relief to complainants before the return day fixed by the register for answer to the interrogatories.It is noted that the interrogatories were propounded by way of amendment after evidence was taken and documents and copies of books called for were before the court, though the accounts were not in a condensed form, and witnesses had been examined in reference to such accounts and documents.

In Ex parte Kelly(Kelly v. Carmichael),221 Ala. 339, 128 So. 443, the observation is that the decree rendered without final submission before answer, etc., was void, that the right of interrogatory was cumulative to the right of discovery sought, and that all the parties were before the court and had the opportunity to elicit the facts called for in the "interrogatories so lately filed in the cause."Such was the instant case.The interrogatories should have been answered pursuant to statute, but we will not reverse for the reason last stated.

The decree was without a reference or statement of accounts by the register or by the court.The decree recites as to this:

"The cross-examination of the witness C. E. Hines was not before the court but was before a commissioner, and there has been no certificate of any facts or refusal to answer filed with the court by the commissioner.

"The court has examined the bill as amended and, taken in connection with the answer to the petition, and with the fact, which the court necessarily knows, that the books and papers of the Bank are already in evidence in the case, and were so at the time the bill was amended to include interrogatories requiring copies of these books and papers, the court is of the opinion that the interrogatories in the bill are not such as to require action on the part of this court.

"By statute, the interrogatories filed by the complainants on, to-wit, February 5, 1930, are not required to be answered by the respondents until after thirty days notice to them by the register; the hearing in this cause was fixed for this date by an order of this court made on December 2, 1929, and obviously respondents cannot be placed in contempt or penalized for failing to answer the interrogatories by the time of the hearing, and the court is not of the opinion that the respondent is in contempt for failure to answer these interrogatories of this date.

"The court has considered the petition, together with the answer of the respondent, and together with the other papers on file in the case, and together with the evidence which has been filed in the case, and is of the opinion that the petition should be denied."

There was no evidence before the court(except by a layman) as to the services rendered and the reasonableness of attorney's fees charged or allowed as against the mortgagors.In this item there was error in the inclusion in the mortgage and allowance of such sum, on the testimony offered.

It is observed of bills for accounting that the judge hearing the cause has the right to restate the account in his own way, in order that the court may arrive at a correct conclusion, and to so state it that the parties may understand on what the court acted, and so that it may be incorporated in the judgment.Compton et al. v. Collins et al.,197 Ala. 642, 73 So. 334;Curtis v. Curtis,180 Ala. 70, 60 So. 165;Kelly v. Wollner,201 Ala. 445, 78 So. 823.Here, the court did not state the account or refer the same to the register so to do.The account is complicated, covering many items and transactions with the bank and its depositors, with the merchants and their customers, and extending over many years.The court merely stated the conclusion as we have indicated-that the mortgages were unpaid at foreclosure, etc.

We believe this was a case for an accounting covering items and balances of accounts, and those due as to payments made on the several notes and the mortgages, of the application of payments to the notes, or if duly directed by the mortgagor of properties not subject to the lien; it likewise embraced the allowance of reasonable attorney's fees, or those charged, allowed and incorporated as part of the debt secured by the lands mortgaged, and of accounting as to the wife's lands and proceeds therefrom, of the amounts due on the mortgages, and that bid on foreclosure of both instruments, the disposition of the difference between the debt due and reasonable expenses of foreclosure, and that amount bid at the foreclosure sales.

The rules governing accounting and a bill therefor declare that technical accuracy in all details is not required in the statement of that pleading and in the assertion of the right thereto as recognized under circumstances covered by the decisions.Boriss Const. Co. v. Deasey,212 Ala. 528, 103 So. 470;Cleveland Storage Co. v. Guardian Trust Co.,222 Ala. 210, 131 So. 634.It is further declared that an accounting is "always ordered where it is incidental to some other relief," Such, for example, where the mortgagee seeks foreclosure, or the mortgagor coming in to redeem is entitled to the right of accounting to ascertain the amount of the indebtedness.Tecumseh Iron Co. v. Camp,93 Ala. 572, 9 So. 343;Kelly v. Wollner,201 Ala. 445, 78 So. 823;Moore v. Berryman et al.,224 Ala. 555, 141 So. 192.The essentials of a bill for accounting may be generally stated, as that where the remedy at law is inadequate, the account is mutual and complicated; or the defendant is guilty of fraud or wrongdoing; or where discovery is needed; or where such accounting is incidental to some other relief.Julian v. Woolbert,202 Ala. 530, 532, 81 So. 32;Grand Bay Land Co. v. Simpson,205 Ala. 347, 87 So. 186;Phillips v. Sipsey Coal Mining Co.,218 Ala. 296, 118 So. 513;Cleveland Storage Co. v. Guardian Trust Co., supra;First Nat. Bank of La Pine v. Bradley,223 Ala. 22, 134 So. 621;Farmers' National Bank of Geneva v. McKinnon,223 Ala. 698, 134 So. 919;Acuff v. Rice,224 Ala. 54, 139 So. 91;United States Fidelity & Guaranty Co. v. First Nat. Bank of Lincoln,224 Ala. 375, 140 So. 755;Moore v. Berryman et al., supra.

In Phillips v. Sipsey Coal Mining Co., supra, the holding was that the filing of such a bill implied unadjusted or controverted items on both sides; that the balance was uncertain; that the true amount and to which of the parties it was due must be ascertained by the court; and implied an offer on the part of the complainant to pay any balance that might be found due the defendant, without the necessity for specific averment of such offer.

In this bill there is the complete and specific averment of such offer to pay, and submission to the jurisdiction of the court to ascertain the amount due, and the offer to obey the mandate of the court, as declared just and equitable in the premises.

We have noted that courts of equity have entertained jurisdiction for accounting where the accounts are on one side, are complicated and difficult, and extend to many transactions and over a long period of time; and where the balance of the amount is uncertain, the remedy being in the nature of discovery, where the parties in interest are all before the court, to the end that justice be done.Terrell et al. v. Southern Railway Company,164 Ala. 423, 438, 51 So. 254, 20 Ann. Cas. 901;Phillips v. Sipsey Coal Mining Co., supra;City of Mobile v. McCown Oil Co.(Ala. Sup.)148 So. 402.

The general rule of the cases is that, where the nature and amount of a...