Johnson v. Ward

• Decision Date: 13 July 1887
• Citation: 82 Ala. 486,2 So. 524
• Court: Alabama Supreme Court
• Parties: JOHNSON, ADM'R, v. WARD.

2 So. 524

82 Ala. 486

JOHNSON, ADM'R, v. WARD.

Supreme Court of Alabama

July 13, 1887

Appeal from chancery court, Tuscaloosa county.

Bill in equity to foreclose mortgage on personal property.

This bill was filed against Elizabeth S. Johnson, and her husband Nelson D. Johnson, by J. Marion Ward. Mrs. Johnson having died, it was revived as to the wife in the name of her administrator, R. D. Johnson. The chancellor having decreed in favor of complainant, defendants appeal. The opinion states the facts.

McEachin, Wood & Wood and A. C. Hargrove for appellants.

Van Hoose & Powell, contra.

STONE C.J.

The assignments of error contain many specifications, of which complaint is made. The argument notices only two, and we will give but a passing notice to such of the others as we deem necessary.

The first objection urged is that the chancellor refused to allow Mrs. Johnson to appeal under section 3930 of the Code of 1876. That section permits married women to appeal in certain cases without giving security for costs. If there be anything in this objection, it cannot be raised by an assignment of error after the appeal is taken. It could probably have been reached by mandamus or mandatory order to compel the granting of the appeal, on the terms prescribed by that statute. The appeal having been taken, this court could not, even on a proper application, compel the doing of an act which has already been done. Ware v. McDonald, 62 Ala. 81; Roberts v. Taylor, 64 Ala. 549.

The next point urged in argument is that the locomotive engine, the subject of the suit, was the statutory separate estate of Mrs. Johnson, a married woman, and that her mortgage of it was void, and will not uphold the equity of a bill to foreclose. As we understand the facts, the engine was contracted for by Mrs. Johnson's husband and trustee, to be employed in and about the enjoyment and utilization of a coal mine, her statutory separate estate; that, by agreement, it was taken for a time on trial; and that, at the end of the trial term, the contract of purchase was closed, one-third of the purchase money paid in cash, and, for the remaining two-thirds, notes were given at four and eight months, signed by Mrs. Johnson and her husband, who contemporaneously executed the mortgage on the engine which this bill seeks to foreclose. This case is not distinguishable in principle from Kieser v. Baldwin, 62 Ala. 526; and on the authority of that case we hold that there is nothing in the second point urged.

The chancellor erred, however, in rendering the decree against Mrs. Johnson personally. His language is: "It is ordered, adjudged, and decreed that the respondents shall pay said sum of $814.32, together with costs of suit, in sixty days after the adjournment of this court, to the solicitor of record, or the register of this court, and in default thereof," etc. This decree would...