Ex parte Waldrop, 6 Div. 415.

• Decision Date: 11 January 1934
• Docket Number: 6 Div. 415.
• Citation: 152 So. 44,228 Ala. 38
• Parties: Ex parte WALDROP. v. WALKER, Judge. WALDROP
• Court: Alabama Supreme Court

152 So. 44

228 Ala. 38

Ex parte WALDROP.

WALDROP v. WALKER, Judge.

6 Div. 415.

Supreme Court of Alabama

January 11, 1934

Original petition of Dollie Waldrop for mandamus to Hon. Wm. M Walker, as Judge of the Circuit Court of Jefferson County requiring him to amend and correct the decree in the cause of Leathy Steely against petitioner and another.

Mandamus denied.

Chas W. Greer, of Birmingham, for petitioner.

Hollis O. Black, of Birmingham, for respondent.

FOSTER Justice.

An amendment of a bill in equity was made at the hearing by striking out allegations in substance that complainant notified respondent of her rescission of the contract, and made a tender of the property purchased and demanded repayment of the money paid and return of the notes mentioned, all of which respondent failed and refused to do; and by adding to the bill a submission by complainant to the jurisdiction of the court, and an offer to do equity. This was done during the argument at the hearing. There was then a demurrer filed to the bill as thus amended, but no answer was filed to it. The note of testimony shows a submission by both parties for final decree noting the pleadings and proof, and also noting the demurrer to the bill as last amended. The decree recites a submission on this demurrer and overrules it, and then recites a submission by agreement of the parties for final decree on the pleadings and proof as noted by the register.

This petition for mandamus is to require the judge to recite the fact that the submission on pleadings and proof did not by consent of the parties follow the submission on the demurrer, but that a hearing was had on the pleadings and proof, and pending such hearing the bill was amended, and the demurrer to it filed, but no answer, and in that status the final decree was rendered without any further submission, and that it does not accurately recite the sequence of the occurrences on the submission, to the prejudice of petitioner.

But the petitioner does not show, we think, that there was any prejudice resulting from the matter complained of. If the demurrer should have been sustained, the decree overruling it could be assigned for error on an appeal from the final decree, and thereby cause it to be reversed. Section 6079, Code; Fogleman v. Nat. Surety Co., 222 Ala. 265, 132 So. 317; Jones v. Industrial Life & Health Ins. Co., 222 Ala. 399, 132 So. 890.

It is immaterial in this respect that the decree on demurrer is made a part of the final decree. If this would make any difference, it would merely emphasize the right to assign it as error on appeal from such final decree.

While the demurrer to the bill as last amended was not incorporated in an answer, it was filed at a time when no further answer was needed to cause an issue of fact, since all the allegations of fact as then constituted had been denied. The status of the situation was therefore quite analogous to that of an answer in which is incorporated a demurrer, since they, in this instance, served the same purpose.

We have in this state a distinctive feature of chancery practice by which a demurrer to a bill, as any other defense, may be incorporated in the answer. Sims Chancery Prac. § 31; section 6547, Code. By rule 72 of Chancery Practice, when a cause is called for hearing, and no proof taken, but there are demurrers, it must be submitted on demurrers. But when the proofs have been taken, it must be heard without waiting for a separate decision on the demurrer contained in the answer. But, if there is such a demurrer, it is said to be customary to submit on the demurrer and on the pleadings and proof, noting the demurrer in the note of the submission. Davidson v. Rice, 201 Ala. 508, 78 So. 862.

On such a submission on the demurrer and on pleadings and proof for final decree, the logical order of procedure would be to decree on the demurrer, and, if it is overruled, then to make final decree on the pleadings and proof as then noted. So that, if that exact order of procedure be pursued, the effect is the same as that stated in the decree, viz., that there was a submission on the demurrer, and, on it being overruled, there was then a submission on pleadings and proof for final decree. A submission for final decree on pleadings and proof when the bill is not at issue is ordinarily, but not always, an error to reversal. And the point is available on appeal from such decree. Thomas v. Barnes, 219 Ala. 652, 123 So. 18 (10).

But when an amendment does not aver new matter which is of such sort as that a new issue of fact is thereby tendered, and the answer to the bill as theretofore set up responds to the issues of fact tendered, including such as are alleged in the last amendment, no further answer to the bill as amended is needed, to put the cause at issue. 21 C.J. 534, § 644; Sims Chancery Prac. § 507.

The...