Tatum v. Yahn

130 Ala. 575

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

HARALSON, J.

1. The decree of April 25th, 1898, although purporting to be final, was not,'under our decisions, a final but an interlocutory decree. The bill averred that the notes secured by the mortgage had not been paid, but remained due and unpaid. The answer denied this; and whether the notes had been paid or not, presented one of the equities upon which complainant’s right to relief depended, and this issue of indebtedness vel non of defendant to complainants, was not determined by said decree. A reference to the register was ordered by the decree, to ascertain the state of the accounts between the parties. The statement in the decree that complainants were entitled to-relief was provisional, dependent upon the fact, whether on a statement of the account to be taken, it was ascertained that defendant was indebted to complainants on said mortgage notes.—Kimbrell v. Rogers, 90 Ala. 340; Savage v. Johnson, 127 Ala. 401.

2. Rule 76 of chancery practice prescribes, that on the bearing, after a statement of the case, “the complainant’s counsel must then offer his testimony in chief, naming the witnesses and other testimony, of which the register must make a note; and then, that of defendant must be offered, and noted by the register, to which complainant, in like manner, must offer his rebutting testimony. Any testimony not offered in this way, and noted by the register on the minutes, must not be considered as any part of the record nor be considered by the chancellor.” This rule is mandatory and prohibits the consideration of any testimony not offered and noted as prescribed.—Reese v. Barker, 85 Ala. 474; Harn v. Council, 100 Ala. 200.

On the submission of the cause in the first instance, no testimony was offered by the defendant and none noted as required by this rule, but complainants’ alone was offered and noted.

3. The chancellor, in the first interlocutory decree, rendered, on April 25th, 1898, directing the register to allow as payment on complainants’ notes and mortgage, the amounts shown by exhibit 2 to defendant’s answer, aggregating $901.91. This.credit could have been adjudged as proper, alone upon the evidence of the defendant, none of which was offered by him on the submission of the cause, and noted as required by said rule of chancery practice. The evidence offered and noted by the complainants, did not sustain this -credit, but tended to show that it was an improper one. It was erroneous, therefore, to direct by said decree, that it should be allowed.

The register, on the execution of the reference ordered by said decree of April 25, 1898, reported to the court, that as directed by said decree, he allowed as a -credit on the mortgage sought to be foreclosed by complainants, the several items mentioned in said exhibit No. 2, attached t-o defendant’s answer, and, also, his finding in other respects, reporting as the result of his findings, that complainants’ mortgage -debt had been over-paid by $79.39. The -complainants, Yahn and Simmons, filed many exceptions to this report, and the defendant, Tatum, did not file any. At the ensuing term of the court, the cause was submitted again “for decree upon the references taken and held before the register * * * upon the executions thereto filed by the complainants.” We construe this submission as one for final decree in the cause, as well as upon the report of the register and complainant’s exceptions thereto. The court so treated it, and proceeded to render a final decree in the -cause, confirming the register’s report in its allowance of said credit of $901.91, and one of the other two credits allowed by him, and disallowing the other, and as thus corrected, the report was confirmed. The court for itself ascertained tbe amount due by respondent to complainants to be tbe sum of $381.88, for wbicb it rendered a decree against defendant, and ordered tbe mortgaged property sold by tbe register, in tbe manner directed in tbe decree, if tbe defendant failed to pay said sum within twenty days. Tbe error in tbe first interlocutory decree, in directing said credits, amounting to $901.91, against complainants, was carried, and appears in the final decree, rendering it in this respect also, necessarily erroneous.

4. Tbe claim of $181.08 allowed by tbe register and by the court in confirmation of his report, as a credit- on complainants’ mortgage, was not pleaded or claimed in the answer in any form, as a payment on tbe mortgage debt, and the only ground on which it could be allowed as a credit, was as a payment, properly claimed as such, or as a set-off wbicb could be allowed only on cross-bill. This principle applies -a® well to the credit of $296.40, allowed by tbe register and disallowed by the court, and was -sufficient, if not for other reasons, for its disallowance.—Beall v. McGhee, 57 Ala. 438; Weaver v. Brown, 87 Ala. 533; Marlowe v. Rogers, 102 Ala. 510.

The decree is reversed on tbe cross-appeal and tbe cause remanded. Tbe appellant in tbe main appeal and the appellee in tbe cross-appeal, A. P. Tatum, will pay tbe costs of tbe appeals. It is further ordered that tbe appellant in tbe main appeal take nothing by his appeal.

Reversed and remanded.