Hall v. Noble

• Decision Date: 13 January 1927
• Docket Number: 5 Div. 954
• Parties: HALL v. NOBLE et al.
• Court: Alabama Supreme Court

111 So. 14

215 Ala. 444

HALL v. NOBLE et al.

5 Div. 954

Supreme Court of Alabama

January 13, 1927

Appeal from Circuit Court, Elmore County; George F. Smoot, Judge.

Bill in equity by B.F. Noble, R.E. Seibels, and M.A. Vincentelli, as trustees, against Thera C. Hall. From a decree for complainants, defendant appeals. Affirmed.

Ludlow Elmore and Bernard Lobman, both of Montgomery, for appellant.

Steiner Crum & Weil, of Montgomery, for appellees.

SAYRE J.

After a decree against appellant foreclosing a vendor's lien and after a sale under the foreclosure decree failed to produce enough to satisfy the purchase-money debt, the court proceeded to render a personal judgment against appellant for the sum of the deficit. Appellant complains of the deficiency judgment, contending that the jurisdiction of the court to render such judgment was not properly invoked, and, in the second place, that there was error in confirming the register's report of sale for the reason the report disclosed the fact that the sale was advertised for three successive weeks only.

1. Sufficiently answered, we think, is the first stated proposition of appellant's brief by the recital of the decree confirming the sale and rendering judgment for the deficiency. The recital is (after reciting the deficiency):

"It is therefore, on motion of complainants, further ordered, adjudged, and decreed that complainants have and recover," etc.

In view of this recital of the judgment, appellant's contention is resolved into this, that the court had no jurisdiction to render the deficiency judgment for that no formal pleading in the cause shows a prayer or motion for such judgment. Presley v. McLean, 80 Ala. 309, is cited in the brief for appellant as holding expressly that a deficiency decree cannot be rendered except upon motion made by the complainant. But the question there was, how, nine years after the decree of foreclosure had been executed complainant might for the first time invoke the power of the court to render a deficiency judgment, and the court, after stating the history and purpose of the statute authorizing such judgments--now embodied in section 6652 of the Code of 1923--held that the complainant there was barred of his right to a personal judgment by laches, saying that "action on the part of the complainant is preliminary to a continuation of the cause on the docket for the rendition of the statutory decree," and that it was not the duty of the chancellor to ascertain the deficiency ex more motu. Here, complainant took timely action as the judgment conclusively demonstrates. If a formal petition or motion in writing were requisite to put the power of the court in motion, it would be necessary in the...