Fogleman v. National Surety Co.

• Decision Date: 22 January 1931
• Docket Number: 3 Div. 925.
• Parties: FOGLEMAN ET AL. v. NATIONAL SURETY CO. ET AL. CHATFIELD ET AL. v. ÆTNA CASUALTY & SURETY CO.
• Court: Alabama Supreme Court

132 So. 317

222 Ala. 265

FOGLEMAN ET AL. v. NATIONAL SURETY CO. ET AL.

CHATFIELD ET AL. v. ÆTNA CASUALTY & SURETY CO.

3 Div. 925.

Supreme Court of Alabama

January 22, 1931

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bills in equity by Alice Fogleman and others against the National Surety Company and Guy T. Smith, and Imogene N. Chatfield against the Ætna Casualty & Surety Company and Frank Young consolidated on trial. From a decree sustaining demurrers to the bills, complainants appeal.

Reversed and remanded.

Bill alleging notary's fraud in falsely representing due acknowledgment of mortgages, and that complainants relied upon representation and thereby sustained loss, held not subject to demurrer, though the cause of loss was matter of proof.

One of the bills of complaint was filed by Alice Fogleman, Lillian Browder, and Nellie O. Wiley, for the benefit of themselves and all others similarly situated, against the National Surety Company, and Guy T. Smith. It alleged that on the 12th day of September, 1922, one J. E. Duskin, Jr., was duly appointed a notary public in and for Montgomery county, Ala and qualified as such, his official bond being executed by the National Surety Company, as surety; a copy of the bond was attached as Exhibit A to the bill of complaint, and showed its condition to be that the said J. E. Duskin, Jr. should faithfully discharge the duties of his office as notary public during the time he continued therein, or discharged any of the duties thereof. The bill alleged that J. E. Duskin, Jr., continued in such office under such appointment from the 12th day of September, 1922, to the 11th day of September, 1926.

The bill further averred that during such time the said J. E. Duskin, Jr., acting as such notary public signed numerous certificates of acknowledgment certifying that on certain dates certain persons appeared before him and acknowledged that they executed certain mortgages, deeds, and other instruments of conveyance, and that, relying upon the truthfulness of such certificates, these complainants, and also numerous other parties whose names are to the complainants unknown, accepted such mortgages, deeds, and other instruments of conveyance, and paid or parted with money and other property of value on the faith thereof. That such certificates in numerous instances were wholly false, and the mortgages, deeds, and other instruments of conveyance were fictitious and forgeries, and that the persons to whom the said J. E. Duskin, Jr., as such notary public, certified had appeared before him and acknowledged such instruments, had never in fact appeared before said Duskin, as such notary public, nor authorized him to sign such certificates. That among other such papers were certain described mortgages purporting to have been executed to the complainant, Alice Fogleman, but which in fact were forgeries, and in each of which the said J. E. Duskin, Jr., as such notary public, certified that the mortgagor named acknowledged before him that he or she executed the instrument voluntarily on the day the same bore date, but that all of said certificates were false and fraudulent, and in reliance upon such instruments and such certificates the said Alice Fogleman parted with the principal amount secured by each of said mortgages, describing six mortgages securing principal indebtednesses aggregating $2,070. The bill contained a similar averment as to the complainant Lillian Browder, the mortgage executed to her being for the sum of $600. Likewise similar averments were contained as to the complainant Nellie O. Wiley, the amount which she parted with on the faith of such false certificates aggregating $1,500.

The bill then averred that the said J. E. Duskin, Jr., was under arrest for numerous forgeries similar to the above, and had made numerous false certificates as such notary public during his said term of office, the losses and damages from which far exceed the amount of his bond, and that the said J. E. Duskin, Jr., was wholly insolvent.

The bill then averred that one Guy T. Smith did on the 12th day of October, 1928, file suit against National Surety Company upon said bond alleging that the said J. E. Duskin, Jr., while acting as such notary public, had made numerous certificates of acknowledgment which were false and fraudulent, and that, relying upon such certificates, the said Guy T. Smith had parted with various sums of money aggregating $2,800.

The bill then averred that other persons in similar situations were threatening likewise to sue upon said bond; that the said Guy T. Smith and such other persons had no claims superior to that of the complainant and all other persons similarly situated, and that none of said persons were entitled to priority, but that the amount of said bond should be apportioned between all those entitled to share therein; that the complainants and other persons similarly situated had no complete and adequate remedy at law, and that, if the said suit of said Guy T. Smith, and such other suits as might be instituted, were allowed to proceed to a final determination, the full penalty of said bond would be exhausted, and the complainants and other persons similarly situated would be wholly without remedy. The bill prays that Guy T. Smith and other persons similarly situated might be restrained and enjoined from further proceedings and actions at law on said bond, and that the equity court might assume jurisdiction for the collection of the amount of said bond, and upon a final hearing might enter a decree against the National Surety Company for the full amount of said bond, and that the proceeds of such collection might be administered for the benefit of said Guy T. Smith, and of the Complainants, and all other persons similarly situated, in the respective amounts to which they might be entitled, and that the complainants might have such other, further, or different relief as in equity they might be entitled to.

The bill of complaint filed by Imogene N. Chatfield, for the benefit of herself and all other persons similarly situated, against Ætna Casualty & Surety Company, a corporation, and Frank Young, was similar in all respects to the bill just described, but counted against the surety on the official bond of J. E. Duskin, Jr., as notary public for the term commencing September 11, 1926, and which would have terminated September 10, 1930.

To each of these bills the several defendants separately demurred. Being submitted for decree on demurrer, the trial court by its decree consolidated the two causes and sustained the demurrer to each bill.

Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellants.

Ball & Ball and Steiner, Crum & Weil, all of Montgomery, for appellees.

FOSTER J.

In our recent case of Ex parte Green, 221 Ala. 415, 129 So. 69, we had before us for review by mandamus the propriety of an order consolidating suits in equity. We there approved that method of review, and referred to the fact that no appeal is provided from such an order. The order of consolidation in this case is a part of a decree sustaining demurrers to the several bills of complaint, and it is to that extent assigned as error. This court has held that a decree from which no appeal may be taken because the time has expired may not be assigned as error on an appeal taken from another interlocutory decree, which will support an appeal, Kyser v. American Surety Co., 213 Ala. 614, 105 So. 689; Lewis v. Martin, 210 Ala. 401, 98 So. 635 (9); though it may be assigned for error on appeal from the final decree, section 6079, Code. For like reason, if no provision is made by law for an appeal from an interlocutory decree, such decree may not be assigned for error on an appeal from another interlocutory decree. We cannot therefore consider such assignment of error, and express no opinion on the propriety of the order of consolidation. But, in this connection, we refer to our case of Ex parte Green, supra, and 1 Corpus Juris, 1128.

The equity of the bills of complaint separately considered is that complainants in each of them and others similarly situated have sustained loss as the proximate result of the breach by J. E. Duskin, Jr., of his successive official bonds as a notary public, in excess of the penalty of the respective bonds, and seek to have the court ascertain the amount due each, and prorate the amount of the liability on each bond among them pursuant to the amount of...