Oden v. Vaughn
Decision Date | 13 May 1920 |
Docket Number | 8 Div. 234 |
Citation | 204 Ala. 445,85 So. 779 |
Parties | ODEN v. VAUGHN. |
Court | Alabama Supreme Court |
On Rehearing, June 30, 1920
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Bill by W.B. Vaughn against Alice E. Oden, as administratrix, and others to compel the transfer of stock to be entered upon the book of the corporation and divest all apparent right to same out of Alice Oden and the estate of her decedent. From a decree granting the relief prayed, respondent Alice E. Oden appeals. Reversed and remanded.
E.W Godbey, of Decatur, for appellant.
W.T Sanders, of Athens, and Callahan & Harris, of Decatur, for appellee.
This appeal was submitted under rule 46, Supreme Court Practice (65 South. vii), and the opinion of the court delivered by
The bill was filed to compel the Bank of Hartselle to transfer certain bank stock held by Mr. Oden in his lifetime and transferred to appellee as security for debt.
See, also, Morris v. Southern Realty & Const. Co., 84 So. 809.
Courts of equity have jurisdiction, for the purposes invoked, to compel cancellation of the old stock and the issuance of stock in lieu thereof to complainant. Evins, Guardian, v. Cawthon, 132 Ala. 184, 188, 31 So. 441; 16 Cyc. 114.
An inspection of the record will show that in rendering the foregoing decree the provisions of Code, § 3163, to the effect that "In all cases in which decrees pro confesso are lawfully taken, the allegations of the bill are to be regarded as admitted, except in case of infant defendants, persons of unsound mind, executors, administrators, and bills for divorce," were overlooked. Howell v. Randle, 171 Ala. 451, 460, 54 So. 563. In Thornton's Adm'r v. Neal, 49 Ala. 590, 593, it is pointed out that the administratrix was merely a nominal party to the suit, and no relief was asked or granted against her. And the decree pro confesso being regularly entered against all other defendants, such nominal party could not complain that no proof was taken to establish complainant's case.
In the instant case the decree is against the said Alice E. Oden as an individual and as administratrix of the estate of A.A. Oden, deceased, and the costs are taxed against her in her individual and representative capacities. For noncompliance with the provisions of Code, § 3163, as to establishment of original complainant's right by a decree pro confesso taken against such administratrix rather than on proof, the judgment of the circuit court was clearly erroneous as binding the estate of A.A. Oden, deceased. The error in rendition of the decree in question is challenged by appropriate assignment on the part of Alice E. Oden in her individual capacity and not as administratrix of the estate of A.A. Oden, deceased. Rule 1, Sup.Ct.Prac. (page 1506, Civil Code); Carney v. M.C. Kiser Co., 200 Ala. 527, 76 So. 853. As to the sufficiency of the assignment of error, it will be noted that it is averred in the original bill that Alice E. Oden represented to the bank that the stock in question belonged to her and forbade the transfer thereof to complainant on the books of the bank; that the cross-bill avers that A.A. Oden died "on or about December, 1916," and that thereafter Alice Oden was appointed administratrix of his estate, that the said Alice Oden, either individually or as administratrix of said estate, contends and claims that the certificate of stock was never transferred to the complainant, or that it was transferred as collateral security for a debt; "that said debt has been paid, and that by the payment of said debt title to said certificate of stock and to said dividend reverted back to her, either individually, as the widow of A.A. Oden, deceased, or to the estate of the said A.A. Oden." Thus is the case taken from the operation of the rule of Chavers v. Mayo, 202 Ala. 128, 79 So. 594, 596 (3), for the reason that the decree was injurious to appellant as the widow of A.A. Oden, deceased. The averments of the bill and cross-bill are such as to show, not only that the appellant assigning error had a beneficial interest in the stock in question, but that the relief prayed was such that the decree rendered cannot be affirmed in part and reversed and remanded in part as to Mrs. Oden's individual and representative capacities. The assignment of error challenges the failure of the court to require testimony, after decree pro confesso against the personal representative, in order that the estate of A.A. Oden, deceased, be bound thereby. For this error, the judgment of the court is reversed and the cause is remanded.
Reversed and remanded.
On Rehearing.
Appellant invokes a decision by the court as to whether the transfer of the shares of stock in question constituted a mortgage or a pledge.
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... ... Cody, 209 Ala. 674, 96 So. 875; ... same case, 207 Ala. 476, 93 So. 420, and noted in the opinion ... and the authorities collected in Oden v. Vaughn, 204 ... Ala. 445, 85 So. 779 ... The ... rules for accounting are considered in Crowson v ... Cody, 209 Ala. 674, 677, ... ...
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