Walker v. Harris
| Citation | 179 So. 213,235 Ala. 384 |
| Decision Date | 13 January 1938 |
| Docket Number | 6 Div. 190 |
| Parties | WALKER v. HARRIS. |
| Court | Supreme Court of Alabama |
Rehearing Denied Feb. 24, 1938
Appeal from Circuit Court, Jefferson County; E.M. Creel, Judge.
Bill to cancel contract by Amy Walker and another against Mattie B Harris. From a decree sustaining a demurrer to the bill, the named complainant appeals.
Affirmed.
Hiram Dodd, of Birmingham, for appellant.
Clark & Trawick, of Birmingham, for appellee.
The appeal was taken within the time allowed by law (thirty days) from the decree sustaining demurrer to complainant's bill. Complainant is a married woman and filed an affidavit for the appeal without security for costs, as provided in section 6138, Code of 1923.
Upon submission of the cause, no motion to dismiss the appeal was submitted or other objection interposed by appellee to the prosecution of the appeal without giving security for the costs. But some time subsequent to the submission of the cause here appellee filed a motion to dismiss the appeal upon this ground, citing in brief in support thereof the cases of Peters v. Schuessler & Sons, 208 Ala. 627, 95 So 26; Cobb v. Reed Phosphate Co., 220 Ala. 55, 124 So. 94; Lea v. Phillips et ux., 216 Ala. 35, 112 So. 323; Ex parte Watkins, 226 Ala. 634, 148 So. 335.
The appeal, however, was taken within the time allowed by law, and, conceding that security for costs should have been given, this was a defect in the manner of taking the appeal which, we think, appellee could and did waive by not interposing her motion upon submission. The discussion concerning this statute in Hildebrand v. First National Bank, 221 Ala. 216, 128 So. 219, suffices to show that it is not a jurisdictional question of which the court must take cognizance of its own accord. The motion of appellee therefore came too late, and must be overruled. Frank Journequin v. Robert Land, Ala.Sup., 177 So. 132.
On the Merits.
The exhibit to the bill is a contract duly signed by complainant and the Protective Industrial Insurance Company. Its recitals disclose that complainant made an appeal to the "company" (to so designate for brevity) to pay off a mortgage debt, delinquent taxes, and improvement assessments on the real estate therein described. Complainant was to convey the property to the company, and the latter was to pay off the past-due indebtedness.
But, evidently looking to complainant's interest, the contract gave to complainant the right any time within three years from that date to repurchase the property at the fixed sum of "$750.00 cash"; and that during such three-year period complainant could occupy the premises as tenant at a monthly rental of $7.50, the company to pay all taxes, insurance, and repairs.
The prayer of the bill is for a cancellation of this contract.
Whether the property was conveyed by complainant to the company as the contract contemplated is left wholly to conjecture. Complainant is alleged to be the owner of the property, but it is also averred that the contract was between complainant "and the respondent's privies in...
To continue reading
Request your trial
-
Manderson & Associates, Inc. v. Gore
...said contract, or else give an excuse for a failure to perform." Keener v. Moslander, 171 Ala. 533, 54 So. 881(1); accord Walker v. Harris, 235 Ala. 384, 179 So. 213(6). Moreover, "one who seeks equitable relief must come into court with 'clean hands' and ... the application of this doctrin......
-
Gray v. State ex rel. Atty. Gen.
...lack of security for costs is held to have been waived,' and cited are Elson v. Pridgen, 241 Ala. 233, 2 So.2d 110, and Walker v. Harris, 235 Ala. 384, 179 So. 213. In each of the cases the appellants, married women, made affidavits that they were unable to give security for costs and claim......
-
Vacalis v. Lowry
...Gibson v. Farmers' Bank, 218 Ala. 554, 119 So. 664. See Ehrmann Mfg. Co. v. Carroll & Sons, 22 Ala.App. 217, 114 So. 275; Walker v. Harris, 235 Ala. 384, 179 So. 213. But the cases just cited have no application if the decree from which the appellants have sought to appeal is not appealable......
-
Blake v. Bank of Am., N.A.
...to the terms of the contract during performance or that she has a legitimate excuse for her nonperformance. See, e.g., Walker v. Harris, 235 Ala. 384, 179 So. 213 (1938). A party's failure to make this showing means the party who commits a material breach cannot then use the contract to hol......