Whitten v. Sheffield Land Co., 8 Div. 758

• Decision Date: 11 March 1937
• Docket Number: 8 Div. 758
• Citation: 173 So. 48,233 Ala. 580
• Parties: WHITTEN v. SHEFFIELD LAND CO.
• Court: Alabama Supreme Court

173 So. 48

233 Ala. 580

WHITTEN v. SHEFFIELD LAND CO.

8 Div. 758

Supreme Court of Alabama

March 11, 1937

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Action by the Sheffield Land Company against G.M. Whitten. There was judgment for plaintiff, and forthwith defendant filed an independent bill in equity. From orders denying motions to transfer the cause to the equity docket and to set aside the judgment at law and transfer the cause to the equity docket defendant appeals and applies for an alternative writ of mandamus.

Appeal dismissed, and mandamus denied.

R.L Polk and T.M. Thomas, both of Sheffield, for appellant.

Andrews & Almon, of Sheffield, for appellee.

BOULDIN Justice.

Appellee sued appellant in statutory ejectment. Defendant filed a motion in writing, duly verified by affidavit, setting up an equitable defense, namely, that he held possession of the lands under purchase evidenced by contract in writing, and had, prior to the bringing of the suit, paid the deferred installments of purchase money in full, and acquired a perfect equity in the lands. Cox et al. v. Cox, 209 Ala. 75, 95 So. 275.

The motion prayed a transfer of the cause to the equity docket under Code,§ 6490.

Plaintiff filed affidavits controverting the fact of payment of the purchase money, denying payment by working out the debt as averred in the sworn motion, deposed to long-continued defaults, and the possession of the purchase-money notes never surrendered nor requested to be surrendered.

The court denied the motion to transfer, tried the case at law and gave judgment for plaintiff.

Forthwith defendant filed an independent bill in equity setting up the same equity and praying for a divestiture of title, etc.

At the same time, within the thirty-day period after judgment in ejectment, defendant filed a motion to set aside the judgment at law and transfer the cause to the equity docket. The bill in equity was made an exhibit to this motion, which sought to have same treated as a bill in the original cause transferred to the equity docket. This motion was denied.

On this appeal it is sought to review the action of the court on both motions. The denial of the motion to transfer the cause to the equity side of the court is not reviewable by appeal. Derzis v. Cox, 223 Ala. 517, 137 So. 306.

To meet this objection, a motion is here made for an alternative writ of mandamus.

We have recognized mandamus as a proper practice in some cases under this article of the Code.

Thus, upon a motion by defendant to transfer a suit in ejectment to the equity docket, the court erred as matter of law in sustaining a demurrer challenging the sufficiency of the equitable defense set up; mandamus was awarded by this court on the ground that the remedy by appeal was inadequate to accomplish the purposes of the statute. Ex parte Louisville & N.R. Co., 211 Ala. 531, 100 So. 843; Smith v. Grayson, Circuit Judge, 214 Ala. 197, 107 So. 448.

In the instant case the trial court was dealing with a motion wherein an issue of fact as to the existence of the equitable defense was presented. The statute expressly authorizes the plaintiff to...