Dudley v. Whatley

• Decision Date: 20 May 1943
• Docket Number: 5 Div. 375.
• Citation: 14 So.2d 141,244 Ala. 508
• Parties: DUDLEY v. WHATLEY.
• Court: Alabama Supreme Court

14 So.2d 141

244 Ala. 508

DUDLEY v. WHATLEY.

5 Div. 375.

Supreme Court of Alabama

May 20, 1943

Rehearing Denied June 30, 1943.

Appeal from Circuit Court, Lee County; Albert Hooton, Judge.

The following are grounds of demurrer to the bill:

"24. The bill refers to 'the mortgage' without sufficiently describing the mortgage to make the same intelligible to the court."

"27. The averments that the complainant 'was falsely fraudulently or mistakenly overcharged on the mortgage debt by the said Lula A. Whatley' is naught but the conclusion of the pleader.

"28. It is not alleged wherein or how the complainant was falsely overcharged on the mortgage debt.

"29. It is not alleged wherein or how the complainant was fraudulently overcharged on the mortgage debt."

J B. Hicks, of Phenix City, for appellant.

Jacob A. Walker, of Opelika, for appellee.

BROWN Justice.

The appeal is from an interlocutory decretal order granting the defendant's motion to dissolve the temporary injunction theretofore issued, and sustaining the demurrer to the bill.

The motion to dissolve is for want of equity in the bill, and upon the sworn answer denying, in part, the allegations of the bill and alleging affirmative defensive matters and proof by affidavit, the complainant submitting counter proof.

In determining whether or not the bill has equity the facts stated and not the manner of their statement are to be considered. Amendable defects apparent or suggested by allegations made will be treated as cured. Holcomb et al., v. Forsyth, 216 Ala. 486, 113 So. 516; Singo et al. v. Brainard, 173 Ala. 64, 55 So. 603.

The denials of the answer are no longer conclusive, but are to be considered with the affirmative allegations of fact supported by affidavit, and allegations of the bill not denied are to be taken as confessed. Code 1940, Tit. 7, § 1061; Brown v. Bell, 206 Ala. 182, 89 So. 659; West v. State ex rel. Matthews, 233 Ala. 588, 173 So. 46; Cox v. Lerman, 233 Ala. 58, 169 So. 724; Hancock v. Watt, 233 Ala. 29, 169 So. 704.

The bill alleges, to state its substance, that on June 3d, 1941, Lula A. Whatley sued the complainant in a justice of the peace court, claiming $90 due from him as rent for a dwelling house; that judgment was rendered against him in said court for the sum claimed and costs. That on September 10, 1941, another suit was filed in said justice court claiming $37.50 due from him as rent for the same dwelling. In both of said suits the complainant prosecuted appeals to the circuit court, and pending said cases on said appeal, complainant filed motions to remove the same into equity, on the ground that at the time of the commencement of the said actions in the justice court and since the plaintiff in said suits was indebted to him in the sum of $670 for money had and received, arising from the over-payment by him to said Lula A. Whatley on a mortgage indebtedness, superinduced by threat of foreclosure, which indebtedness he was prevented from pleading as set-off, without great sacrifice, because his claim for money due him far exceeded the jurisdiction of such justice court. His said motions to remove the controversy to equity were denied. Thereupon the death of said Lula A. Whatley was suggested and said cases were revived in the name of S. M. Whatley as administrator of her estate. On the trials in the circuit court complainant offered to show said indebtedness, as a defense, which defense was denied him and all evidence relating thereto rejected. Said judgments were on appeal to the Court of Appeals affirmed. Dudley v. Whatley, 30 Ala.App. 579, 10 So.2d 43.

The bill further alleges that S. M. Whatley, as administrator of said estate and as plaintiff, was at the time of filing of the bill threatening to have executions issued on said judgments and cause the same to be levied on complainant's property and effects, and he is without money to pay and satisfy the same, and will suffer loss in the sacrifice of property and costs if the enforcement of said judgments is not enjoined. The bill alleges that complainant has filed his claim as a claim against said estate and that it has been denied by the administrator of said estate.

The bill also alleges that complainant made the overpayment on the mortgage indebtedness to the said Lula A. Whatley under protest that the amount exacted was excessive, but he was without knowledge of the exact amounts that he had previously paid, the evidence of which was in the hands of said Whatley, and he was unable to determine the amount of such overpayment until he made the same and the mortgage and notes carrying evidence of previous payments were delivered to him.

There is an absence of averment that he made request to inspect said papers and that such inspection was refused, but he alleges, "that he was falsely, fraudulently, or mistakenly overcharged on the Mortgage Debt, by the said Lula A. Whatley," and unless the enforcements of said judgments are enjoined, "he will be compelled to pay off said judgments, while said estate is indebted to him in a much greater sum." The bill does not allege that the estate of said Lula A. Whatley is insolvent; on the other hand, the answer shows that the estate is not insolvent, but has assets out of which to pay said claim of complainant if judgment is recovered thereon in an action at law.

The answer denies that said Lula A. Whatley or her estate was indebted to the complainant, or that said mortgage debt was overpaid by him, and alleges that said payment was voluntarily made after an amicable adjustment between the parties, and said payment was for a less sum than was claimed by the said Lula A. Whatley.

The burden of appellee's argument is that it is essential to the bill's equity that it allege that the estate against which the set-off is asserted is insolvent, otherwise the complainant has a complete and adequate remedy at law.

While insolvency of the alleged debtor is the usual basis for invoking the jurisdiction of a court of equity to entertain a bill for equitable set-off, it is not the only ground upon which the court's jurisdiction may be invoked. Nor does the mere fact that the party claiming such set-off may by action of assumpsit effect a recovery on his claim and collect the same by execution or other legal process constitute in all cases and under all circumstances a complete and adequate remedy. Fischer v. Pope et al., 233 Ala. 301, 171 So. 752; 24 R.C.L. p. 807, § 15; Ex parte Fischer, 229 Ala. 455, 157 So. 869; Stewart v. Burgin et al., 219 Ala. 131, 121 So. 420.

In Fischer v. Pope et al., supra [233 Ala. 301, 171 So 753], it was said: "While the mere existence of mutual and independent demands does not authorize the interposition of a court of equity to set them off against each other, yet, 'where there is some intervening equity which renders it necessary for the protection of the demand sought to be set off, that ...