Gamble's, Inc. v. Kansas City Title Ins. Co.

• Decision Date: 23 January 1969
• Docket Number: 3 Div. 351
• Parties: GAMBLE'S, INC. v. KANSAS CITY TITLE INSURANCE COMPANY.
• Court: Alabama Supreme Court

Page 923

217 So.2d 923

283 Ala. 409

GAMBLE'S, INC. v. KANSAS CITY TITLE INSURANCE COMPANY.

3 Div. 351.

Supreme Court of Alabama.

Jan. 23, 1969.

Hill, Robison, Belser & Phelps, Montgomery, for appellant.

Jones, Murray, Stewart & Varner, Montgomery, for appellee.

BLOODWORTH, Justice.

Appellant, Gamble's, Inc., has filed an appeal from a ruling of the circuit court of Montgomery County, in equity, denying its judgment for materialman's lien priority over a recorded mortgage of the appellee, Kansas City Title Insurance Company, and also from the trial court's order denying appellant's motion for rehearing.

Appellee has filed a motion in this court to strike the transcript and dismiss the appeal.

The facts are that appellant on October 5, 1964 obtained a judgment in the circuit court of Montgomery County, Alabama, against Frontier, Inc., and Mollie C. Ginsberg in the amount of $2,326.91. A mechanic's lien was imposed in favor of appellant against a parcel of real estate located in Montgomery County, Alabama, referred to as 'Lot C--1' by virtue of appellant's supplying labor and materials (ornamental iron for stairways and railings), which were incorporated in an addition to 'Continental Motel' under a contract with the then owners of the land, Frontier, Inc. The first invoice under which appellant furnished ornamental iron is dated May 1, 1963, and the record shows that, although appellant had done some fabricating at its plant on or about April 18, 1963, the first delivery to the building site was on May 1, 1963, but appellant was unable to prove the exact hour of delivery.

Frontier, Inc., mortgaged said property to City Federal Savings & Loan Association, its mortgage being dated April 27, 1963 and filed for record May 1, 1963, at 10:30 a.m. Subsequently, the mortgage was foreclosed by City Federal, bought in by the mortgagee, and on February 24, 1964, City Federal conveyed the property to the appellee. At the time the mortgage was executed, construction on the addition had already commenced.

After a hearing the trial court made and entered its decree dated May 31, 1967, denying relief to the appellant. The trial court based its denial of relief to appellant on the following:

'* * * The evidence does not show any delivery of materials prior to 10:30 a.m. on May 1, 1963. Work done away from the building site, even though later delivered to and incorporated in the building, is not sufficient to create priority on the materialman over the mortgage under the facts in this case.' (Emphasis supplied.)

A motion for rehearing was timely filed by appellant on June 16, 1967, continued by the judge below to July 21, 1967, then to August 10, 1967, when an order was made: Motion continued for 30 days of disposition for filing additional briefs.

The record shows no further order within this thirty-day period. Motion for rehearing was overruled by the court on October 9, 1967. Notice of appeal was filed February 7, 1968.

In an effort to relate its appeal to the order overruling the motion for rehearing, appellant filed what it called a 'Petition for Instructions' asking the court to clarify the record of the proceedings to show that the motion for rehearing was argued and submitted on August 10, 1967. The court entered an order February 1, 1968, that it

'does recall and takes judicial notice that the said motion for rehearing was * * * argued and submitted to the Court on August 10, 1967 * * *.'

It is from the court's final decree of May 31, 1967, and the decree on rehearing of October 9, 1967, that this appeal is taken.

No argument or assignment of error relating to denying motion for rehearing is presented--and properly so, because there is no appeal therefrom. Rule 62, Equity Rules; Boyett v. Tindell, 279 Ala. 248, 184 So.2d 155.

Motion to Strike Transcript--Improper Record

Appellee's motion to strike the transcript and dismiss the appeal is based on grounds that the appeal was taken more than six months after the final decree, and does not comply with the rules governing the preparing of the record as required by Title 7, §§ 767, 827(1), Code of Alabama, 1940, as amended. See, Northwestern Mutual Life Ins. Co. v. Workman, 283 Ala. 127, 214 So.2d 690.

After the motion of appellee was filed in this court, appellant (apparently confessing its efficacy as respects the improper record) filed a petition for certiorari under Rule 18, Revised Rules of the Supreme Court, 279 Ala. XXI, XXX, to perfect the record before submission. This petition was granted July 8, 1968, all the Justices concurring. Demurrers to the petition, filed July 9, 1968 by appellee, were never acted on. Whereupon, on July 15, 1968, a petition was filed herein by appellee to vacate the order of this court of July 8, 1968 granting certiorari. The petition was denied on July 22, 1968, five of the Justices concurring.

Subsequently, on July 31, 1968, certain exhibits were refiled in this cause, another register's certificate of the record and court reporter's certificate were filed. The certificate of appeal and notice of appeal were also corrected.

It, therefore, appears at this time that the motion to dismiss because of an alleged improper record is moot, as the alleged errors and irregularities have been corrected and the record returned to this court by the court below.

Motion to Dismiss--Appeal not timely filed

Appellee contends that the trial court's order of August 10, 1967 gave thirty days for submission of briefs and no order thereafter being made to continue the cause or indicating it was submitted to the court, a discontinuance of the motion was effected and the court lost jurisdiction to make its order of October 9, 1967 overruling the motion for rehearing. Therefore, appellee argues, the appeal must be dismissed as having been taken more than six months after the rendition of the final decree. Title 7, § 788 et seq., Code of Alabama 1940. Appellee admits that the time for appeal may be suspended pending a timely ruling on an application for rehearing in conformance with Equity Rule 62, but appellee contends the application for rehearing was not kept alive by appropriate orders of the court below until it was ruled on, on October 9, 1967. Appellee cites Moving Picture Machine Operators Local No. 236 v. Cayson, 281 Ala. 468, 205 So.2d 222, a decision in which the rules applying to rehearings in equity are discussed at length.

In view of the result we reach on the merits, we pertermit consideration of the motion to dismiss the appeal as not timely filed.

Merits of the Case

Here the question is: Does a materialman's lien have priority over a mortgage executed after commencement of work by the materialman at his shop though not delivered or furnished to the building site until subsequent to the recording of the mortgage but where the mortgagee had access to plans and specifications showing the material was to be incorporated in the completed building?

Section 38, Title 33, Code of Alabama 1940, states that the mechanic's or materialman's 'lien as to the land and buildings or improvements thereon, shall have priority over all other * * * mortgages * * *...