Allison v. Cody

95 So. 286, 209 Ala. 124, 1923 Ala. LEXIS 289

• Court: Supreme Court of Alabama
• Decided: January 18, 1923
• Docket: 3 Div. 586.
• Status: Published

Opinions

The report of this cause on former appeal appears in 206 Ala. 88,89 So. 238. The amendment of the bill on June 14, 1922, after affirmance here, wrought no material change of the bill in respect of the status considered on former appeal. No confidential relation, such as that of pledgor and pledgee (Crowson v. Cody, 207 Ala. 476, 93 So. 420), is shown in the amended bill to have existed with respect to Allison, the complainant, and the defendant Cody, who effected statutory redemption as stated on former appeal of this cause. The decree of July 25, 1922, sustaining demurrer to the bill as amended is affirmed upon the authority of Allison v. Cody, 206 Ala. 88,89 So. 238.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing. The contention that error to reverse affects the decree sustaining demurrer to the amended bill, in the particular that the decree dismissed "the bill of complaint as amended," without allowing opportunity to amend, is not well founded, for that the ruling was made in term time, and the record does not disclose that the privilege of amendment was either sought by appellant or denied by the trial court upon the occasion of sustaining the demurrer to the amended bill. Mohon v. Tatum,69 Ala. 466, 470; Buford v. Ward, 108 Ala. 307, 314, 19 So. 357.

The rehearing is denied.

ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.