McClenny v. Ward

80 Ala. 243

• Court: Supreme Court of Alabama
• Decided: December 15, 1885
• Status: Published

Opinion

CLOPTON, J.

The decree must be reversed, because of the failure to give the defendant notice of the amendment to the bill.

A decree pro confesso on the original bill was entered against the defendant on personal service. Afterwards an amendment was made to the bill, alleging that there was a misdescription of the land in the mortgage, which the bill was brought to foreclose, and seeking its reformation. The amendment was filed September 21, 1885 ; and on the next day, the cause was submitted for a decree, and a decree made reforming the mortgage. The defendant was required to answer the amendment; but the record does not show that any order was made that a notice that the bill had been amended should be entered on the order book, or that notice was so entered or otherwise given to the defendant. Though the defendant is in default on the original bill, notice of an amendment, alleging other material facts, and praying other and additional relief, should be given as provided by rule 47 of Chancery Practice; or by a summons to answer. Without notice, a decree can not be regularly rendered* on the amendment. Holly v. Bass, 63 Ala. 387; Masterson v. Masterson, 32 Ala. 437.

Reversed and remanded.