National City Bank v. Barret

106 So. 168, 214 Ala. 35, 1925 Ala. LEXIS 500

• Court: Supreme Court of Alabama
• Decided: October 22, 1925
• Docket: 1 Div. 329.
• Status: Published

Opinion

SOMERVILLE, J.

Under section 6604. Code of 1923, a respondent in equity against whom a decree pro eonfesso has been entered is entitled as a matter of right, upon making a proper showing, and proffering a full and sufficient answer, to have the default set aside. May v. Dimick, 206 Ala. 107, 89 So. 374.

The trial court refused to set aside the decree pro eonfesso in this case solely on the ground:

“That the defendants have not fully answered the bill in. the particular that they have not given an itemized statement of the moneys received by the defendant the National City Bank, or its predecessors in interest, on the alleged indebtedness of $8,400 of B. T. Barret, or Barret Bros. & Co., or Barret Bros. Shipping Company to the defendant National City Bank.”

In this conclusion and action we think the trial court was clearly in error. The bill of complaint exhibits neither prayer nor interrogatory calling for an itemized statement of the payments in question.

The bill shows that the original debt of $8,400 has been reduced by partial payments to about $1,300, and it avers that—

“Complainants have sought from said. defendant bank an account of the credits due on the said $S,400 received or retained by said defendant bank out of transactions financed by it, as aforesaid and have been unable to do so.”

The alternative prayer is:

“That the said bank be required to account for all moneys received or retained by it on account of said $S,400, and that a decree against the said bank for the amount so received * * * be given to complainants, one or both.”

The circumstances leading up to respondents’ default in answering, which are fully set forth in the motion to set it aside, make a proper showing for relief, and the proffered answer is full and sufficient.

The trial court was in error also in taking a submission of the cause for final decree on pleading and proof so long as Pringle, the new party respondent brought in by the amendment, had not been served with process and had not made any appearance.

Wright v. May, 40 Ala. 550; Vaughan v. Smith, 69 Ala. 92.

In this state of the record, we cannot deal with the merits of the case, but must reverse the judgment and remand the cause, to the end that the decree pro eonfesso may be set aside, and the respondents allowed to answer and litigate the claims of complainants.

No doubt the bill of complaint will be duly amended so as to eliminate the respondent Pringle, and rid it of. its impracticable aspect of a bill for actual redemption of the land.

Reversed and remanded.

THOMAS, MILLER, and BOULDIN, JJ., concur.