Garrett v. Oddo

• Decision Date: 24 June 1954
• Docket Number: 6 Div. 12
• Parties: GARRETT v. ODDO.
• Court: Alabama Supreme Court

Page 761

73 So.2d 761

261 Ala. 172

GARRETT v. ODDO.

6 Div. 12.

Supreme Court of Alabama.

June 24, 1954.

Chas. A. Speir, Birmingham, for appellant.

Roscoe Chamblee, Birmingham, for appellee.

PER CURIAM.

This is an appeal from a final decree of the circuit court in equity. There is but one question involved, and that relates to the effect of the decree because of the death of one of the complainants which occurred prior to the rendition of the decree. The trial was had under Equity Rule 56, as amended by the Act of May 21, 1943, Acts 1943, page 28 and Code 1940, Tit. 7 Appendix. The evidence was not taken down by the court reporter or stenographer as there provided. That requirement of Rule 56 was apparently waived by the parties. Thomas v. Thomas, 246 Ala. 484, 21 So.2d 321.

There was certified to this Court as a part of the record a document entitled 'Succinct Statement of the Evidence', which contains the following recital: 'Appellant files this, his succinct statement of the evidence in the above captioned cause. Appellant waives any and all evidence, matters or occurrence arising during the trial of said cause except as hereinafter set out and waives any and all errors as to evidence, matters, or occurrences arising at the trial except as hereinafter set out'.

It then recites that at the oral hearing the solicitor for appellant, Howard Garrett, suggested the death of Bettie Garrett, one of the complainants and cross respondents who had died intestate more than twelve months prior thereto, and leave of the court was asked to revive in the name of the administrator of her estate when known or in the name of her heirs. The evidence showed that there was no administration of her estate; that complainant Howard Garrett was an adult child of Bettie Garrett who left no surviving husband. There was no evidence that she left any other descendants. The 'statement' then recited that the case was ordered to be heard as to Howard Garrett. This statement was approved by the presiding judge. Title 62, § 366, Code, applicable to equity cases in Jefferson County. Such statement appears to be made as provided in section 827(3), Title 7, Code. But that does not apply to equity cases under the terms of the Act of June 10, 1953, Acts 1953, page 122, Act No. 80.

The record does not show any order of the court with reference to the death of Bettie Garrett. The requirement as to a revivor upon the death of a party in an equity suit is controlled by Equity Rule 35, and requires an order of substitution to be made within twelve months when a party dies. The statement above mentioned shows that this was not done.

So we have a status where there are two complainants, one an adult son of the other who is his mother and who died before the decree was rendered, but no order of revivor appears in the record. The effect of that status is the only question raised on this appeal.

Rule 35 of Equity Practice has been construed in a similar situation in the case of Mutual Service Funeral Homes v. Fehler, 257 Ala. 354, 58 So.2d 770. In that case, as in this, there was no revivor in any respect and, therefore, it was contended that the decree was void because it was for the joint benefit of the complainants, two of whom were dead. After careful consideration, the Court came to the conclusion that the effect of that status depended upon the nature of the suit and the rights of the individual complainants with reference to it. So that if the remaining complainant was entitled to the relief sought, the fact that the decree was in favor of the complainants would be referred to that one of the complainants who was entitled to relief, and that such would be interpreted as the meaning of the decree.

The question here is also raised by a motion made by Howard Garrett after the decree was rendered, to set aside the judgment, and among the grounds so assigned is that the decree was void as to Bettie Garrett, one of the complainants who was dead at the time this cause was submitted. That motion was overruled by the court.

In the case of Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116, this Court held that a decree of a court of equity overruling a motion to set aside the final decree on account of the death of the sole party complainant or respondent was itself a final decree and subject to appeal. But the final decree being void it was not appealable.

The security for costs recites the appeal is taken from the decree dated August 22, 1949, which is a final decree in the cause, and which is not the decree overruling the motion to set aside the final decree. If the final decree is void on account of the death of Bettie Garrett, the appeal would have to be dismissed. While the appeal was taken more than six months after the rendition of the final decree, section 788, Title 7, Code, the period within which it may be taken was suspended pending the application to set aside the final decree, and the appeal was taken within due time upon the basis of that principle. Gavin v. Hughes, 249 Ala. 126, 30 So.2d 245.

As we have said above, the solution of the question argued on the appeal depends upon a consideration of the nature of the bill and the relief sought. The equity of the bill is to enforce the equity of redemption of a certain mortgage on real estate which the complainants held as assignees thereof and which they pledged and assigned to the respondent, Anthony Oddo, as collateral security for a debt alleged to have been contracted. The bill alleges that the respondent made certain agreements with reference to the indebtedness to be secured by the pledge of the collateral which were not complied with and that in violation of the agreement instead of foreclosing the collateral agreement he proceeded to exercise the power of sale contained in the mortgage and foreclosed the mortgage under its power, becoming the purchaser at the sale. Complainants alleged that said foreclosure sale was void and offered to pay to the respondent the amount which they owed him in redemption of the pledged collateral.

Section II, Title 9, Code, makes provision for the foreclosure of collateral pledged as security for a debt. It does not appear that the provisions of that statute were attempted to be complied with and the respondent by answer and cross bill does not deny complainants' right to relief by paying the proper amount to him, but he sets up in his cross bill the amount for which the collateral was pledged which is considerably more than that stated in the original bill. The court granted relief authorizing a redemption, or in default thereof a foreclosure, and ascertained the amount due to the respondent by the complainant Howard Garrett, giving him time within which to pay it to respondent Anthony Oddo.

There is no contention in this case as to the equity of the original bill. It is that of a pledgor having assigned collateral security seeking in equity to have an accounting as to the pledged debt and a redemption of the collateral pledged and assigned to secure it. We have a number of cases in which the principle is generally stated that the pledgor of collateral or other personal property for the security of a debt may file a bill in equity against the pledgee for the purpose of redeeming the pledged property. Where that equity has been pursued it was as to a transaction where the pledgor not only pledged property to secure his debt but did so in such way as to pass the legal title of it to the pledgee, although that status may not be emphasized. When so, the transaction is not only a pledge but it is...