Ex parte Spence, 6 Div. 505
Decision Date | 18 August 1960 |
Docket Number | 6 Div. 505 |
Citation | 122 So.2d 594,271 Ala. 151 |
Parties | Ex parte J. R. SPENCE. |
Court | Alabama Supreme Court |
Herbert Ezzell, Birmingham, for petitioner.
Maurice F. Bishop and Donald L. Morris, Birmingham, for respondent.
This is an original petition to this court by J. R. Spence for a writ of mandamus to the Honorable Allen D. Rushton, as a special judge of the Circuit Court of Jefferson County, in Equity, commanding him to vacate and set aside an order or decree overruling Spence's motion to strike a demand for jury trial.
The demand was filed by Wylam Presbyterian Church in a mechanic's lien suit instituted in the Circuit Court of Jefferson County, in Equity, on March 6, 1959, by Spence against Wylam Presbyterian Church, a corporation, as owner of the property on which the mechanic's lien was sought to be established, and against the First National Bank of Birmingham, a corporation which was alleged to hold a mortgage on that property.
Following the filing of the petition for mandamus an answer was filed here on behalf of the respondent, the special judge, by counsel who appeared below for Wylam Presbyterian Church. The issuance of the rule nisi was waived.
That mandamus is the proper remedy to review the respondent judge's action in overruling Spence's motion to strike the demand for jury trial is not questioned, and in fact seems to be conceded. See Ex parte Hall, 255 Ala. 98, 50 So.2d 264, and Ex parte Merchants Nat. Bank of Mobile, 257 Ala. 663, 60 So.2d 684.
The answer admits the material facts averred in the petition and denies the conclusions therein as to the invalidity of the order overruling Spence's motion to strike the demand for jury trial.
We look, therefore, to the petition for mandamus and the exhibits thereto to determine whether or not a case is made for the issuance of a peremptory writ of mandamus. See Ex parte Hall, supra.
The bill filed on March 6, 1959, averred that Spence, a building contractor, had furnished materials and performed work in making additions to and renovation of the Wylam Presbyterian Church, Wylam, Alabama, hereafter sometimes referred to as the church; that Spence had not been fully compensated for the materials furnished and work done. The bill further alleges that after Spence had commenced the work for which he claimed a lien under Title 33, § 37 et seq., Code 1940, the church had executed a mortgage to the First National Bank of Birmingham, hereafter sometimes referred to as the bank, covering the church building and property.
The bill prayed: (1) For a judgment in favor of Spence against the church in the amount of $12,591.08; (2) for an order or decree declaring, fixing and establishing a lien in the amount of $12,591.08 on the church building and property; (3) for an order or decree that the lien of Spence is paramount and superior to the mortgage held by the bank.
On March 23, 1959, the church appeared specially for the purpose of filing a 'Motion to Dismiss and in the Alternative Motion to Quash Service.'
On April 10, 1959, the motions filed by the church on March 23, 1959, were overruled. The church was given twenty days within which to plead further.
On April 23, 1959, the church filed a demurrer and a demand for a trial by jury.
Thereafter, on June 12, 1959, Spence moved to strike the church's demand for trial by jury on substantially two grounds: (1) that the demand for trial by jury was not made within thirty days after the perfection of service on the church; and (2) that the church was not entitled to a trial by jury of the proceedings then pending in the equity court, even if request for a jury trial had been made timely.
On October 9, 1959, the respondent in this proceeding, Allen D. Rushton, as special judge, entered a decree which reads as follows:
'Decree Overruling Motion To Strike Jury Demand
'This Cause coming on to be heard this day upon complainant's motion to strike Jury Demand heretofore filed in said cause by respondent Wylam Presbyterian Church, a corporation.
'Ordered, Adjudged and Decreed by the Court that complainant's motion to strike Jury Demand be, and it is hereby overruled and denied.
'Done and Ordered, this the 9th day of October, 1959.
'Copies to attorneys
'/s/ Allen D. Rushton
'Special Circuit Judge in Equity Sitting.'
In Wilbourne v. Mann, 203 Ala. 26, 27, 81 So. 816, 817, decided by this court in 1919, it was said:
'The bill was to enforce a mechanic's lien on real properties subject to mortgage.
(Emphasis supplied.)
The decree under review makes no reference to the Wilbourne case. The existence of that case might not have been called to the trial judge's attention or he might have considered it incorrect. That case could not be distinguished on the ground that it involved a matter of priority of liens of which an equity court had original jurisdiction because the same situation exists in the present case.
Counsel for the respondent judge in brief filed here says of the Wilbourne decision as follows:
'Wilbourne v. Mann, supra, held simply that the respondent was not entitled to a trial by jury under § 3201, Code of Alabama, 1923 (now Title 7, § 322, Code of Alabama, 1940), and makes no mention whatsoever of the Alabama statutes relating to Mechanics' and Materialmen's Liens.'
Counsel inadvertently observed that § 3201 of the Code of 1923 was cited in the Wilbourne case. The citation was to § 3201 of the Code of 1907.
We cannot agree that the Wilbourne case 'held simply that the respondent was not entitled to a trial by jury under § 3201' of the 1907 Code. That section is cited, but the positive statement is made in the opinion that 'it was not a case where such demand may be made as a matter of right.'
We are not advised as to why no reference was made to the statutes relating to mechanic's liens in the opinion in the Wilbourne case. Perhaps it was due to the fact that the author of the opinion felt it unnecessary to cite those sections, entertaining the view that they contained no language giving a jury trial as a matter of right.
We are of the opinion that the part of the holding in the Wilbourne case, supra, which we have italicized is correct.
In Lucas et al. v. Scott, 247 Ala. 183, 184, 24 So.2d 540, 541, we stated the rule in regard to jury trials in equity as follows:
No constitutional question was raised in the court below and none has been pressed upon us on this appeal. Hence, no such question is here considered.
In our opinion, no statute which has been brought to our attention provides for a jury trial as a matter of right in a mechanic's lien suit brought in an equity court.
Section 49, Title 33, Code 1940, upon which the trial court based its ruling, reads as follows:
(Emphasis supplied.)
Although this section makes no reference to trials in equity or jury trials on either side of the court, we understand the respondent judge to construe the part of the section which we have italicized above as superimposing upon mechanic's lien suits in equity, as authorized by § 48, Title 33, all of the rules of pleading, the rules of practice and the rules of procedure applicable to the trial of such cases in courts of law, including the right to demand a jury trial under § 260, Title 7, Code 1940.
We have held that § 49, Title 33, does apply to suits in equity to the extent that the bill must 'contain a...
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