Jones v. Phenix-Girard Bank, PHENIX-GIRARD
| Decision Date | 18 January 1951 |
| Docket Number | PHENIX-GIRARD,4 Div. 579 |
| Citation | 50 So.2d 1,255 Ala. 51 |
| Parties | JONES et al. v.BANK. |
| Court | Alabama Supreme Court |
Patterson & Patterson, of Phenix City, for appellants.
Smith & Smith, of Phenix City, for appellee.
This is an appeal from a final decree dissolving an injunction restraining the appellee from foreclosing a mortgage on certain real estate of appellants, wherein an accounting was had between the parties stating the amount due on the mortgage debt and ordering a foreclosure of the mortgage.
The decree results from the consolidation by agreement of the parties of two causes of action filed in the same equity court (Russell Circuit). Appellee bank filed its bill seeking to foreclose a mortgage executed by appellants on certain real estate situated in Lee County. The defendants (appellants) then answered that they were not residents of Russell, but were residents of Lee County, where the land was situated, and the plaintiff bank then paid the accrued costs and requested the register to dismiss the suit, no formal order, however, having been entered. The bank then started to foreclose in Lee County under the power contained in the mortgage, and thereupon appellants filed their bill in the same equity court of Russell County, seeking to enjoin the said foreclosure, pending disposition of the case first filed by the bank against them, and praying for an accounting between themselves and the bank. The court thereupon, on the appellants making bond, issued a writ of injunction restraining the foreclosure of the mortgage
Thereafter, the parties by agreement consented for the withdrawal of the motion to dismiss the original foreclosure suit and agreed to have both cases--the forcelosure suit of the bank and the suit for accounting and injunction filed by appellants--consolidated as one, and the court thereupon heard the two consolidated cases as one and proceeded to an accounting and statement of the amount due by appellants on the mortgage.
The evidence was heard ore tenus and, as observed, on final submission the court rendered a decree dissolving the injunction restraining the foreclosure of the mortgage, stated an account between the parties determining the amount due by the appellants to the bank under said mortgage, and directed the register to sell the real estate described in the mortgage before the courthouse door of Lee County, after due publication.
It must be conceded that this was a rather novel and informal procedure, but the parties having agreed to this method cannot now recede from it. A fair interpretation of the record is that the appellants waived any defense they might have had to the...
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