Peebles v. Bank of Pollard
| Decision Date | 16 May 1918 |
| Docket Number | 6 Div. 734 |
| Citation | 201 Ala. 518,78 So. 872 |
| Parties | PEEBLES et al. v. BANK OF POLLARD. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Bill in equity by the Bank of Pollard against Alice L. Peebles and another. Decree for complainant, and respondents appeal. Affirmed.
L.J Haley and James A. Mitchell, both of Birmingham, for appellants.
Fred G Moore, of Birmingham, and Page & McMillan, of Brewton, for appellee.
The act approved September 28, 1915 (Gen.Acts 1915, pp. 830-832) provides, among other things:
"If an equitable question, the decision of which should dispose of the cause and which cannot be disposed of in the law side of the court, depends upon the assertion of an equitable right or defense by a party who is defendant or an intervening claimant in such suit at law, such party may assert such right or defense by a written motion filed in the cause, which shall state the substance of the equitable right or defense. ***"
Provision is then made for the transfer of the cause to the equity side, if the judge is satisfied it is a proper case. Then follows this direction:
"Within thirty days after any such cause has been so transferred the plaintiff or complainant shall make such amendments to the pleadings as may be necessary to conform to the appropriate pleadings in equity court."
Appellants' theory seems to be that this provision of the law imposes upon the complainant the burden of setting forth in the bill all the facts relating to the equitable questions and defenses invoked by the defendant at law, and whose assertion by him has resulted in the transfer of the cause; in short, appellants conceive of their motion as having the office and effect of a cross-bill, which must be specifically answered by complainant. This theory is wholly erroneous. The office of the motion is merely to effect a transfer of the cause. It is then functus officio, and by the express provision of the act the defendant is required to plead, answer, or demur to the bill within 30 days, and to establish or maintain the question, right, or defense asserted by him. Very clearly the complainant need do nothing more than to present his legal demand, so as to show a prima facie right to recover thereon; and the respondent must on his part plead and prove the equitable matters and defenses relied on.
The demurrer to the bill was properly overruled, and the...
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Stover v. Hill
... ... with the procedure approved in Cornelius v. Moore (Ala ... Sup.) 94 So. 57, overruling Peebles v. Bank of ... Pollard, 201 Ala. 518, 78 So. 872; Warren v ... Crow, 202 Ala. 680, 81 So. 636 ... ...
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Carey v. Hart
...supra. Proceeding upon the theory, evidently, that appellant was the actor in the court of equity (this by reason of what was said in Peebles v. Bank and Warren v. Crow, supra), the court applied the rule of Mathews v. Carroll Mercantile Co., 195 Ala. 501, 70 So. 143, and the cases there ci......
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Aust v. Sumter Farm & Stock Co.
... ... contrary view entertained by counsel for defendant in this ... cause found support in Peebles v. Bank of Pollard, ... 201 Ala. 518, 78 So. 872, which authority, however, was ... overruled ... ...
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Warren v. Crow
...with the chancery practice, and that the defendant shall then present his defense by plea or answer as in chancery. See Peebles v. Bank of Pollard, 78 So. 872. would have been the appropriate procedure here; but there was manifestly no prejudice to the defendants at law in requiring them to......