Bostick v. Jacobs

141 Ala. 598

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

DOWDELL, J.

This is the second appeal in this cause. Bostick v. Jacobs, 133 Ala. 344. The present appeal is taken from a final decree rendered on a submission upon the bill and answer. The alternative prayer of the bill as amended prayed for a pro rata application of the proceeds of the sale of the land under the foreclosure of the mortgage, to the two notes upon which the complainant was a surety. The answer admits the averments of the-bill applicable to- the theory of relief asked for in the alternative prayer, and the respondents concede that the complainant is entitled to a pro rata• application of the proceeds of the sale under the foreclosure of the mortgage; hut it denies the statement of facts, upon which the prayer of the bill for an application of the entire proceeds of the sale to the two notes on which the complainant wa.s a surety is based. No testimony Avas taken, and the cause being heard alone upon the bill and answer, the averments in the bill other than those admitted by the answer,, are unsupported by any evidence. The decree of the chancellor Avas in accordance with the principle stated on the former appeal, and it must therefore be affirmed.

Affirmed.

McClellan, O. J., Haralson and Denson, J.J., concurring.