Wells v. American Mortgage Co.

123 Ala. 413

Opinions

TYSON, J.

The other members of the court are of opinion, that by sheer force of the statute, a claim for decree over for any balance of the mortgage debt left after the application thereto of the proceeds of the sale of the mortgaged property, is within the Us pendens of every foreclosure suit from the moment of its institution, and, of consequence, that, while it is necessary for the complainant to move for such decree over after the balance has been fixed and ascertained, no notice of such motion need be given to the respondent: He has notice of complainant’s claim in that regard, and of his right to make such motion in the contingency named and that it will be made, from the first, just as lie has notice of all other relief the complainant may be or become entitled to in the cause. — Code, § 859, and cases there cited. It follows that the decree must be affirmed. .•