Lunsford v. Shannon

• Decision Date: 27 March 1930
• Docket Number: 6 Div. 503.
• Citation: 221 Ala. 207,128 So. 215
• Parties: LUNSFORD v. SHANNON.
• Court: Alabama Supreme Court

128 So. 215

221 Ala. 207

LUNSFORD v. SHANNON.

6 Div. 503.

Supreme Court of Alabama

March 27, 1930

Rehearing Denied May 15, 1930.

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Bill in equity by J. S. Shannon against Nora L. S. Lunsford. From a decree confirming report of special master, respondent appeals.

Reversed and remanded.

Cabaniss Johnston, Cocke & Cabaniss and R. B. Evins, all of Birmingham, for appellant.

John H Bankhead, Jr., of Jasper, and Theodore J. Lamar, of Birmingham, for appellee.

GARDNER J.

The appeal is from a decree confirming the report of a special master on pleadings seeking a mutual accounting between members of a joint adventure. The history of this joint adventure, and the material substance of the written contract constituting its foundation, are found in the report on the first appeal, and need not be here repeated. Lunsford v Shannon, 208 Ala. 409, 94 So. 571, 572.

The decree was reversed, following which the bill was amended by bringing in other parties. The decree dismissing the amended bill as to these third parties was reviewed and affirmed in Shannon v. Lunsford et al., 215 Ala. 465, 111 So 22.

The review by this court was confined solely to this feature of the decree, the court saying: "Upon final decree *** complainant was denied relief as against the parties added by amendment, and the bill dismissed as to them. The appeal is to review this feature of the final decree." No part of the opinion on the last appeal is of influence upon any questions here presented. This much is said in answer to suggestion to the contrary in appellee's brief.

In stating the account between appellant and appellee, the special master allowed to appellee interest on the balance found due in his favor dating from October 1, 1916, and aggregating the sum of $9,655.80. The court approved this method of stating the account and overruled appellant's exception filed thereto. This was error. The question was given full consideration by this court in Grand Bay Land Co. v. Simpson, 207 Ala. 303, 92 So. 789, 791, wherein is the following language here pertinent: "In the instant suit the balance for which the aid of a court of equity was invoked could not be known until the respective mutual, unliquidated accounts were canvassed on reference and the rendition of final decree approving such finding of the register. The balance of mutual unliquidated accounts should not bear interest except from the date of the final decree. *** Appellee's insistence is that interest is statutory and runs upon each item of account from its due date. Code 1907,§ 4620. If this rule be applied to mutual, unliquidated accounts, it can only be as to ascertained 'balance' in money that should have been paid. The balance in favor of complainant could not be ascertained before the reference and its confirmation by the court." The foregoing represents the general rule in the absence of some special equity, which does not here obtain. 47 C.J. 1255, § 978; 47 C.J. 1182, § 876; Christian & Craft Gro. Co. v. Hill, 122 Ala. 490, 26 So. 149.

Seeking to avoid the effect of the foregoing authority, appellee suggests the doctrine of subrogation should be influential. There has been no suggestion of this doctrine in the record, and to give such application to the facts here presented would be tantamount to a destruction of the rule stated in the quoted extract from the Grand Bay Land Company Case, supra. The argument is no more an answer in this case than was that seeking to invoke the statute in the Grand Bay Land Company Case. Some reference is made in brief to an offer for the property at one time made by Bessill, which was refused as disclosed by evidence on former appeal, but not here presented, but we consider the insistence wholly lacking in merit, and needs no discussion.

Nor has the fact, that the amount due on the mortgage bears interest, any relation to the rule above stated concerning the statement of mutual account.

The authority noted is decisive of this question adversely to appellee's contention, and conclusive of error committed in respect to this interest charge.

The question is presented by the fourteenth exception to the report of the special master, and constitutes the fourth assignment of error. No evidence is noted at the foot of the exception, and it may be suggested that, for a failure to comply with rule 93, Chancery Practice, the exception should not be considered. Ex parte Cairns, 209 Ala. 358, 96 So. 246; Curtis v. Curtis, 180 Ala. 70, 60 So. 165; Faulk & Co. v. Hobbie Gro. Co., 178 Ala. 254, 59 So. 450. But this rule is a rule of convenience for the court, and was intended for practical purposes. The error here is one of law and no testimony was necessary to note. It must follow, therefore, that the rule is without application. Such was the holding of this court as to rule 75, Chancery Practice, in the recent case of McCollum v. McCollum, 218 Ala. 500, 119 So. 232, the reasoning there being equally applicable here.

Appellant further insists that the report contains a fundamental error as to the date of the accounting, allowing appellee credit for expenditures after the termination, for all practical purposes, of the joint adventure. In the decree of November 29, 1924, the chancellor expressed the...