Ewing v. First Nat. Bank of Montgomery, Ala.

Supreme Court of Alabama

Ewing v. First Nat. Bank of Montgomery, Ala.

153 So. 243, 228 Ala. 307, 1934 Ala. LEXIS 156

CourtSupreme Court of Alabama

DecidedMarch 1, 1934

Docket3 Div. 79.

StatusPublished

Cited by2 cases

This text of 153 So. 243 (Ewing v. First Nat. Bank of Montgomery, Ala.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ewing v. First Nat. Bank of Montgomery, Ala., 153 So. 243, 228 Ala. 307, 1934 Ala. LEXIS 156 (Ala. 1934).

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Opinion

ANDERSON, Chief Justice.

This case has been before this court before, 148 So. 836. 1 it was there held that the bill was subject to the respondents’ demurrer in its attempt to escape a tender because a sufficient and accurate statement had not been furnished of all lawful charges essential to a redemption, and that the statement, as to 'the inaccuracy and incorreet:..ess of said charges, was too vague and indefinite.

After affirmance, the bill of complaint was. amended, but we fail to discover any material improvement or substantial change in an attack on the different items of said charges-True, the amendment charged that the item of $425 attorneys’ fee was unreasonable, and, as suggested in brief of appellant’s counsel, “makes an issue for the trial court to determine.” And we may add, if the issue is found in favor of the appellant, it would excuse a tender. The attack is not confined to this item of the statement, but to others and, in a way, condemned on the former appeal. In other words, should the appellant fail to establish his charge as to attorneys” fee, the amended bill puts the respondent at the disadvantage of litigating the correctness of other items of the statement not properly pointed out by the bill either before- or since the amendment. The trial court did not err in sustaining the demurrer to the bill as last amendefl, and the decree of the circuit court is affirmed.

Affirmed.

THOMAS, BROWN, and KNIGHT, JJ., concur.

1

227 Ala. 46.

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ANDERSON, Chief Justice.

This case has been before this court before, 148 So. 836. 1 it was there held that the bill was subject to the respondents’ demurrer in its attempt to escape a tender because a sufficient and accurate statement had not been furnished of all lawful charges essential to a redemption, and that the statement, as to 'the inaccuracy and incorreet:..ess of said charges, was too vague and indefinite.

After affirmance, the bill of complaint was. amended, but we fail to discover any material improvement or substantial change in an attack on the different items of said charges-True, the amendment charged that the item of $425 attorneys’ fee was unreasonable, and, as suggested in brief of appellant’s counsel, “makes an issue for the trial court to determine.” And we may add, if the issue is found in favor of the appellant, it would excuse a tender. The attack is not confined to this item of the statement, but to others and, in a way, condemned on the former appeal. In other words, should the appellant fail to establish his charge as to attorneys” fee, the amended bill puts the respondent at the disadvantage of litigating the correctness of other items of the statement not properly pointed out by the bill either before- or since the amendment. The trial court did not err in sustaining the demurrer to the bill as last amendefl, and the decree of the circuit court is affirmed.

Affirmed.

THOMAS, BROWN, and KNIGHT, JJ., concur.

1

227 Ala. 46.

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153 So. 243, 228 Ala. 307, 1934 Ala. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewing-v-first-nat-bank-of-montgomery-ala-ala-1934.

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