Southern Home Building & Loan Ass'n v. Gillespie

• Decision Date: 12 April 1899
• Citation: 25 So. 564,121 Ala. 295
• Court: Alabama Supreme Court
• Parties: SOUTHERN HOME BUILDING & LOAN ASS'N v. GILLESPIE.

25 So. 564

121 Ala. 295

SOUTHERN HOME BUILDING & LOAN ASS'N v. GILLESPIE.

Supreme Court of Alabama

April 12, 1899

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Bill by James C. Gillespie against the Southern Home Building & Loan Association. From a decree for complainant, defendant appeals. Reversed.

This is a suit in equity, the bill having been filed in the circuit court of Morgan county, which has equitable jurisdiction bestowed by special act (Acts 1894-95, p. 881), by J. C Gillespie against the Southern Home Building & Loan Association, and seeks the cancellation of a mortgage made by him to the association and which the bill alleges has been fully paid. The defendant, as shown by the bill, is a corporation having its principal place of business in Atlanta, in the state of Georgia. A summons to answer the bill was issued on the same day the bill was filed, viz., the 8th day of July, 1897, and was returned by the sheriff with the following indorsement: "Executed by handing C Collins, agent for the defendant, a copy of the within, on the 8th day of July, 1897. S. P. Ryan, Sheriff, by T. F Turley, Deputy Sheriff." On the 9th day of August, 1897 a decree pro confesso was taken against the defendant before the clerk. The language of the decree, so far as it relates to service of the summons, is in these words: "In this cause, it being made to appear to the clerk that a summons requiring the defendant, the Southern Building & Loan Association, to appear and plead to or answer the bill of complaint in this cause, within thirty days from the service of said summons upon him, was served upon him by the sheriff of Morgan county on the 8th day of August, 1897, and the said defendant having failed, etc." There is nothing in the record to show that any proof was made to the clerk of the agency of Collins. After the decree pro confesso was taken, a commission was issued for the oral examination of complainant and also of C. Collins, in behalf of complainant, and they were examined on the 13th day of August, 1898. Collins testified, on that examination, that he was the general agent of the defendant and had been since 1890. A final decree was rendered on the 1st day of November, 1897, granting complainant the relief prayed in his bill. The decree recites that the cause had been submitted "upon the original bill and the testimony taken after a decree pro confesso having been duly entered upon...