Marx v. Lining

• Citation: 165 So. 207,231 Ala. 445
• Decision Date: 19 December 1935
• Docket Number: 1 Div. 872
• Parties: MARX v. LINING.
• Court: Alabama Supreme Court

165 So. 207

231 Ala. 445

MARX v. LINING.

1 Div. 872

Supreme Court of Alabama

December 19, 1935

Rehearing Denied Jan. 23, 1936

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Bill of interpleader by T.M. Stevens against Mrs. George D. Lining and Julius E. Marx, and cross-bill by Marx against Lining. From a decree for cross-respondent Lining, cross-complainant Marx appeals.

Affirmed.

Leo M Brown and Leo H. Pou, both of Mobile, for appellant.

Jere Austill, of Mobile, for appellee.

KNIGHT Justice.

At the threshold of this case we are met with a motion to dismiss the appeal, upon the ground that the appeal was taken on the 9th day of April, 1935, and the transcript was not filed in this court "within sixty days from the taking of the appeal."

Rule 41, Supreme Court Practice, requires that in all cases, civil or criminal, appealed during the term, unless the transcript is filed with the clerk of this court not later than the first day of the first week of the term during which the case is subject to call in this court, the appeal shall be dismissed at the cost of appellant, unless good cause be shown to the court, by affidavit or affidavits, not later than the next Thursday, why said transcript was not filed within the time herein allowed.

It appears that the transcript was filed in this court on October 10, 1935. The motion to dismiss the appeal was filed on July 27, 1935.

The appellee was not prejudiced by any delay occurring in the filing of the transcript, as it was on file here prior to the time that any submission could have been had on the appeal.

The appellant has filed here an affidavit of the register, which presents a sufficient excuse in our judgment for the delay in the preparation and filing of the transcript. The motion to dismiss the appeal will, therefore, be overruled, and it is so ordered. Rules 41, 42; McCoy et al. v. Wynn, 215 Ala. 172, 110 So. 129; Sloss-Sheffield Steel & Iron Co v. Webster, 183 Ala. 322, 323, 62 So. 764; Cudd v Reynolds, 186 Ala. 207, 65 So. 41.

The cause was submitted here both on the motion to dismiss the appeal, and on the merits, and having reached the conclusion that there is no merit in the motion to dismiss the appeal, we will, therefore, proceed to consider the cause on its merits.

This was a bill of interpleader filed by T.M. Stevens against Julius E. Marx and Mrs. George D. Lining, to determine which of the two named defendants was entitled to a sum of money in the hands of the complainant, and due from him to one or the other of said parties as commissions for making the sale of a piece of property. Both parties claimed the money.

The complainant, in order to avoid double liability, and desiring that the court should judicially determine the rightful claimant, filed this bill calling upon each of said parties to propound his or her claim to the fund.

That the bill contains equity, we entertain no sort of doubt, inasmuch as each of the respondents claims to have procured the purchaser for the property, and each expressly denied that the other was instrumental in effecting the sale. It is to ascertain judicially which one of the claimants was the efficient or procuring cause of the sale, that the bill seeks the aid of the court.

The bill admits that the complainant is liable to one or the other of the parties, but avers a state of facts which shows a reasonable ground of uncertainty as to which claimant is entitled to the commission, and a bona fide controversy between rival claimants, without collusion on the part of the complainant. In such a case, the stakeholder, or debtor, will not be required to determine, at the peril of incurring double liability, disputed questions of fact. 33 Corpus Juris §§ 11, 14, and 16, pp. 427, 429, and 430; Gibson v. Goldthwaite, 7 Ala. 281, 42 Am.Dec. 592; Johnson et al. v. Blackmon, 201 Ala. 537, 539, 78 So. 891; Catts v. Sipsey Coal Mining Co., 212 Ala. 421, 102 So. 895.

It appears from the bill that the complainant T.M. Stevens owned a certain piece of real estate at Springhill, in Mobile county, in August, 1934, which he desired to sell; that he was consulted by a number of real estate brokers or agents relative to handling said property; that in each instance complainant "stated that he would accept for the property $19,000.00, and would pay to the agent making the sale a commission of five per cent.; that among others to whom the said statement was made was the said Julius E. Marx." It is averred that this statement was made to said Marx several months prior to September, 1934.

It further appears from the bill that after the complainant's conversation with Marx, Mrs. Lining called the complainant over the telephone, asking whether or not the property was for sale, and, if so, at what price, and that complainant then advised Mrs. Lining that it was for sale, that he would take $19,000 for it, and would pay 5 per cent. commission to the agent making the sale. Mrs. Lining then stated to complainant that she thought she could make a sale of the property, and that complainant would hear from her later. In another telephone conversation Mrs. Lining advised complainant she was offering the property to Mrs. Edwill A. Davis, and thought that Mrs. Davis would buy the property; that Mrs. Davis or her representative would call upon complainant. That after further negotiations, complainant agreed to accept for the property $15,650, provided Mrs. Lining "would be content with not exceeding $400.00 as her commissions." To this Mrs. Lining consented. Following this, the complainant entered into a contract with Mrs. Davis for the purchase of the property at the price of $15,650. This contract was entered into on August 27, 1934, and up to that time it appears that complainant had heard nothing from Marx about the matter, and had no information or notice that Marx had ever mentioned the property to Mrs. Davis, or was even acquainted with her.

However, it appears from the bill that, in the interim between the execution of the contract on August 27, 1934, for the sale of the property to Mrs. Davis, and the execution of the deed thereto on September 7, 1934, Marx notified complainant that he had heard of the sale, and that it was he, Marx, who had interested Mrs. Davis in the property, and he claimed the commission; and further notified complainant that Mrs. Lining was not a licensed real estate broker or agent, and had no right to collect commissions for the sale of real estate.

The complainant prayed that his bill be treated as a bill of interpleader, and that the two defendants, Marx and Mrs. Lining, be required "to interplead as between themselves, and to litigate with each other their respective claims" to the said commissions. Complainant, with the bill, paid into court the $400 which he had agreed to pay Mrs. Lining as commissions for making the sale.

The said Marx filed his answer to the bill, and made the same a cross-bill against the respondent Mrs. George D. Lining, in which he asserted his right to the $400 commissions, averring that he was the "procuring cause of said Mrs. Davis becoming interested in said property and thereafter buying the same, and as such is entitled to the said commission." He further averred that Mrs. Lining was not licensed to act as a real estate broker, as required by the laws of Alabama, and that any attempts on her part to act as such broker or agent, or to collect said commission, were in violation of law.

It is here to be noted that Mr. Stevens made no such insistence, but desires that the commission be paid to that one of the complainants who procured the purchaser, and who was the efficient cause of the sale to Mrs. Davis.

Mrs Lining appeared, and answered the bill, admitting all of its allegations. She also filed an answer to the cross-bill filed by Marx, denying its allegations, and setting up that she procured the purchaser of the property, and was entitled to the agreed commission. She averred that said Marx had no exclusive agency to sell the property; that he was not the procuring cause of the sale of said...