Ex parte Baird
| Decision Date | 27 February 1941 |
| Docket Number | 7 Div. 642. |
| Citation | 200 So. 601,240 Ala. 585 |
| Parties | EX PARTE BAIRD. |
| Court | Alabama Supreme Court |
Original petition of Bonnie Baird for mandamus to require R. B. Carr as Judge of the Circuit Court of Calhoun County, to submit issues of fact to a jury, in a suit in equity filed by petitioner as complainant, against J. Ralph Hamilton and Henry C. Baird, as respondents.
Writ denied.
Chas F. Douglass, of Anniston, for petitioner.
Merrill & Merrill, of Anniston, for respondent.
Petition for mandamus by Bonnie Baird directed to Hon. R. B. Carr Judge of the Circuit Court, in Equity, of Calhoun County, to compel the issuance of an order or decree directing that the issues of fact in the case of petitioner versus J. Ralph Hamilton and Henry C. Baird, pending in the Circuit Court of Calhoun County, in Equity, be tried by a jury.
Petitioner complainant in the court below, on March 8, 1938, executed a note, secured by a mortgage on the lands here involved, to secure the payment of an attorney's fee for defending her husband then under indictment, which note and mortgage were transferred by the mortgagees to J. Ralph Hamilton. Under the power of sale contained in the mortgage, after maturity of the note and demand for payment, Hamilton began foreclosure proceedings; and it was while the foreclosure was being advertised that petitioner filed her bill on which this proceeding is predicated.
It is now too well understood and firmly settled for discussion that a trial by jury as a matter of right in a court of chancery depends solely upon statutory or constitutional provisions. Curb v. Grantham, 212 Ala. 395, 102 So. 619; 21 Corpus Juris, 585. That such is the rule is not controverted by counsel for petitioner, but the insistence seems to be that the bill of complaint filed in the case hereinabove mentioned comes within the purview of our statutes to quiet title (section 9905, Code of 1923), and that a jury trial is provided for in such proceedings by section 9908, Code of 1923.
If the bill of complaint in this case is one to quiet title under section 9905 et seq., Code of 1923, the petitioner is entitled to have the issues involved tried by a jury, and the writ of mandamus should issue, otherwise not. The nature and character of the bill must be determined from a consideration of the facts averred in it. Bledsoe v. Price & Co., 132 Ala. 621, 32 So. 325.
The bill in the instant case...
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Porter v. Alabama Farm Bureau Mut. Cas. Ins. Co.
...as provided in section 1109 and 1112, Title 7, Code, the right to a jury trial granted by section 1112 does not apply. Ex parte Baird, 240 Ala. 585, 200 So. 601.' (265 Ala. at page 572, 93 So.2d at page It is apparent in the two cited cases that complainant asked for relief under § 1112, Ti......
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Moseley v. Monteabaro
... ... Yauger v. Taylor, ... 218 Ala. 235, 118 So. 271; Tillery v. Commercial Nat ... Bank of Anniston, 241 Ala. 653, 4 So.2d 125; Ex parte ... Baird, 240 Ala. 585, 200 So. 601 ... So that ... appellant's whole contention is settled by the inquiry of ... whether complainants ... ...
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Miller v. Hewell
...as provided in sections 1109 and 1112, Title 7, Code, the right to a jury trial granted by section 1112 does not apply. Ex parte Baird, 240 Ala. 585, 200 So. 601.' As already noted, the bill in the instant case sought recognized equitable relief in addition to the quieting of title under th......
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Turnham v. Potter
...depends solely upon statutory or constitutional provisions. Curb v. Grantham, 212 Ala. 395, 102 So. 619 (1925). In Ex Parte Baird, 240 Ala. 585, 586, 200 So. 601 (1941), this court 'If the bill of complaint in this case is one to quiet title * * * the petitioner is entitled to have the issu......