Montgomery v. Drinkard Auto & Truck Co.
| Decision Date | 16 October 1952 |
| Docket Number | 6 Div. 266 |
| Citation | 257 Ala. 685,60 So.2d 823 |
| Parties | MONTGOMERY et al. v. DRINKARD AUTO & TRUCK CO. et al. |
| Court | Alabama Supreme Court |
A. L. Sapp, Cullman, for appellants.
Bland & Bland, Cullman, for appellees.
On February 6, 1950, J. A. Montgomery and wife, Jannie Montgomery, executed a mortgage on certain real property situate in Cullman County to Drinkard Auto & Truck Company, which mortgage, according to its recitals, was executed for the purpose of securing a pre-existing debt owed by the mortgagors to the mortgagee in the sum of $1,486.29.
Thereafter, on August 16, 1950, J. A. Montgomery and wife filed a bill in the circuit court of Cullman County, in equity, against Drinkard Auto & Truck Company, a partnership, the members of the partnership, and others. The bill sought a decree declaring the said real estate mortgage void and of no effect.
In addition to the prayer, there were four paragraphs in the bill, numbered 1, 2, 2-A, and 3. Paragraph 1 was the introduction. In paragraph 2 the execution of the real estate mortgage and the reason for its execution was averred. It was also averred in that paragraph that the real estate covered by the mortgage was the homestead of the mortgagors, complainants, containing not more than 160 acres and valued at not more than $2,000. The mortgage sought to be declared void was made an exhibit to the bill and it appears therefrom that it was duly executed before a notary public of Cullman County, with separate acknowledgement of the wife being taken. In paragraph 2-A it was averred that the mortgage is invalid for two reasons: first, that no separate acknowledgement of the wife was taken; and, second, that the acknowledging officer was an official of the firm of Drinkard Auto & Truck Company, the mortgagee. In paragraph 3 of the bill it was averred that the mortgage is invalid for the reason that its terms are indefinite and unintelligible.
On December 27, 1950, the trial court entered a decree sustaining demurrer to the bill and giving complainants twenty days within which to amend.
Complainants did not appeal from the decree of December 27, 1950. They subsequently filed what is termed an 'amended bill.'
The first paragraph of the amendment reads: 'Complainants adopt and use Paragraphs One and Two of their bill and add paragraphs 4, 5, 6, 7 & 8 & 9 & the prayer of the bill to the said bill as follows, towit:' The added paragraphs are then set out, together with the amendment to the prayer.
On April 18, 1951, the trial court sustained demurrer to the bill of complaint as amended. From that decree an appeal has been taken by the complainants to this court.
The first assignment of error is: 'The Court erred in sustaining demurrers to that phase of the Complainants' bill seeking to cancel the real estate mortgage.'
In brief filed here on behalf of appellants, complainants below, counsel deals at length with the question of the real estate mortgage, asserting its invalidity for the reasons asserted in paragraphs 2-A and 3 of the original bill, and contending that it was error to sustain the demurrer to that aspect.
But the invalidity of the real estate mortgage on the grounds asserted in the original bill is not a question for review on this appeal. As shown above, the appeal is not taken from the decree entered on December 27, 1950, sustaining demurrer to the original bill, but from the decree of April 18, 1951, wherein the demurrer to the bill as amended was sustained. It is well settled that on an appeal from an interlocutory decree, appellant cannot assign for error interlocutory decrees rendered more than thirty days before the appeal was taken, but may do so from final decree. Lampkin v. Strawbridge, 243 Ala. 558, 11 So.2d 130; Bain v. Howell, 247 Ala. 514, 25 So.2d 167; Eatman v. Nuckols, 251 Ala. 544, 38 So.2d 494.
The new paragraphs of the bill added by amendment, in so far as we are able to understand them, contain no averments as to the invalidity of the real estate mortgage on the grounds asserted in the original bill, and all of he averments of the original bill attempting to set up grounds for cancellation, contained in paragraphs 2-A and 3, were deleted by the language of the first paragraph of the amendment to the bill, which paragraph we have set out above. By adopting paragraphs 1 and 2 of the original bill and making no reference whatever to paragraphs 2-A and 3, the pleader has eliminated those paragraphs not mentioned.
We come now to a consideration of the action of the trial court in sustaining demurrer to complainants' amended bill.
The theory of a demurrer is that it is an entity. The grounds are but particular reasons why the demurrer should be sustained. It should be sustained if any ground shows a good reason for doing so. Hammons v. Hammons, 228 Ala. 264, 153 So. 210. And on appeal, such a...
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...informed of the nature of the case which he is called upon to defend; otherwise it is subject to demurrer.' Montgomery v. Drinkard Auto & Truck Co., 257 Ala. 685, 60 So.2d 823, 825. But 'the same precision of statement is not generally required in equity as at law, and the certainty with wh......
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...been considered as well taken. L. W. Richardson & Co. v. Town of Hamilton, 248 Ala. 585, 28 So.2d 924.' Montgomery v. Drinkard Auto & Truck Co., 257 Ala. 685, 687, 60 So.2d 823, 824, 825. See, also: Ala. Digest, Appeal and Error, k854(3), and cases there The second proposition argued by app......
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