GILLILAND MERCANTILE CO. v. SINCLAIR, 203 Ala. 62 (1919)

82 So. 22

GILLILAND MERCANTILE CO. v. SINCLAIR et al.

7 Div. 994.Supreme Court of Alabama.
May 15, 1919.

Page 63

Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.

Riddle Riddle, of Talladega, for appellant.

R. B. Kelly, of Birmingham, for appellees.

SOMERVILLE, J.

It was not necessary to issue a summons to the original complainants to answer the cross-bill. Code, § 3118. The filing of the cross-bill was, ipso facto, a summons, and, all of the cross-respondents being in default on January 28, 1918, the decree pro confesso was properly entered on the cross-bill on that date, without further notice. Thereafter cross-complainant’s depositions were properly taken without serving copies of interrogatories on the cross-respondents, or notifying them of the taking of the testimony. Court Rules of Practice 61, Code, p. 1545.

The request for submission for final decree was in all respects in accordance with the provisions and requirements of the act of September 17, 1915 (Acts 1915, p. 606). The record shows a note of submission embracing the pleadings, decree pro confesso, and the depositions supporting the allegations of the cross-bill, and the final decree was properly rendered.

While the submission was primarily upon the cross-bill, the issues necessarily

Page 64

involved the equity of the original bill as against the cross-complainant; and relief under the cross-bill involved as of course the dismissal of the original bill as to the cross-complainant. We presume that the trial court intended the decree of dismissal to dispose of the original bill only in so far as the cross-complainant was concerned, since the submission for final decree was necessarily thus limited, and did not involve the rights asserted by the junior mortgagee against the mortgagors. Hence the decree of dismissal leaves the original bill still pending as against the mortgagors who were made respondents thereto.

The dismissal of the original bill in this case did not require the dismissal of the cross-bill, which is based upon an independent equity, although the original bill was clearly without equity as to the senior mortgagee, the cross-complainant. Wilkinson v. Roper, 74 Ala. 140. It is true that the complainants, as junior mortgagees, could have maintained their bill against the senior mortgagee for redemption, but the bill contained no offer to redeem; and it could not be maintained merely for the purpose of ascertaining the amount of the senior mortgage debt, so that the complainants could redeem “if they saw fit to do so.” Mims v. Cobbs, 110 Ala. 577, 582, 18 So. 309.

Cross-complainant’s mortgage provides for the payment of “all lawyer’s fees, and all costs and expenses” incident to a suit for foreclosure. The cross-bill very clearly claims a reasonable attorney’s fee, and $50 for incidental expenses, and the trial court did not err in allowing an attorney’s fee of more than $50.

We find no error in the record, and the decree of the circuit court will be affirmed.

Affirmed.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.