Opinion
7 Div. 568.
October 5, 1939. Rehearing Denied November 2, 1939.
Appeal from Circuit Court, St. Clair County; Alto V. Lee, Judge.
Jas. A. Embry and W. L. Acuff, both of Ashville, for appellant.
A judge sitting in equity is without jurisdiction to render a decree based on a verdict of a jury in the law court until the proceedings in the law court, including the verdict of the jury, have been certified to the equity court by the judge presiding in the law court, although the judge may be the same person in each case. Karter v. East, 220 Ala. 511, 125 So. 655; Id., 218 Ala. 536, 119 So. 662; Id., 215 Ala. 375, 110 So. 610; Ex parte King, 230 Ala. 529, 162 So. 275. A judge sitting in equity is not authorized to render a final decree until there is a submission of the cause. Sims Ch. Pr. § 562; Chancery Rule 77; Pope v. Allinder, 219 Ala. 439, 122 So. 419; Anderson v. Steiner, 217 Ala. 85, 115 So. 4; Zaner v. Thrower, 203 Ala. 650, 84 So. 820; First Nat. Bank v. Harris, 231 Ala. 672, 166 So. 421. Rules of Chancery 75 and 76, requiring a note of testimony, are mandatory, and where the record shows no note of testimony the decree will be reversed. Tatum v. Yahn, 130 Ala. 575, 29 So. 201; Johnston v. Johnston, 229 Ala. 592, 158 So. 528; Simpson v. James R. Crowe Post No. 27, 230 Ala. 487, 161 So. 705; Watson v. Kirkland, 204 Ala. 655, 87 So. 93; Home Ins. Co. v. Shriner, 235 Ala. 65, 177 So. 897; Lundy v. Jones, 204 Ala. 326, 85 So. 411; Mullen v. First Nat. Bank, 226 Ala. 305, 146 So. 802. The rule applies to oral evidence taken before the court. Ivey v. State ex rel. Orme, 231 Ala. 232, 164 So. 291; Johnston v. Johnston, supra. The court of equity may for sufficient reason order a new trial. Code 1923, § 9908; Karter v. East, 218 Ala. 536, 119 So. 662. The effect of the decree, rendered ten days after the verdict, was to cut defendant off from making any attack on the proceedings in the law court. Brintle v. Wood, 223 Ala. 472, 136 So. 803; Karter v. East, 218 Ala. 536, 119 So. 662.
John R. Robinson and O. R. Hood, both of Gadsden, for appellees.
To review the jury trial resulting in the verdict, a motion to set aside the verdict must have been made before the final decree was rendered. Brintle v. Wood, 223 Ala. 472, 136 So. 803; Karter v. East, 220 Ala. 511, 125 So. 655; Karter v. East, 218 Ala. 536, 119 So. 662; Hale v. Cox, 222 Ala. 136, 131 So. 233. Bill of exceptions is necessary to review of trial before jury. Authorities, supra. Chancery Rule 75 does not apply to an equity case tried before a jury. In such case a bill of exceptions is proper.
This appeal is prosecuted by the defendant from the final decree entered on the verdict of a jury rendered on the trial of an issue out of chancery in two cases — bills filed under the statute to quiet title to land — consolidated by consent of the parties, and tried as one.
The defendant in its answer to the bill first filed, Case No. 526, asserted that it had a mortgage on a part of the land executed by three of the complainants to the defendant in August, 1934, for $650, on which payments had been made, leaving a balance due and unpaid.
In the Case No. 527, it asserted that it had a mortgage on all of said land for Two Thousand Dollars executed to it by all of the complainants to secure an indebtedness contracted by one of said complainants, Izo Jones Baswell.
The answers were made cross-bill seeking foreclosure, and in their answers to the first cross-bill the complainants admitted the indebtedness secured by the mortgage, but in the other they denied the existence of the indebtedness, asserted that the note and mortgage for $2,000 was without consideration; that the note was signed by only one of the complainants, the said Izo Jones Baswell; that her signature thereto "was procured by Respondent to said note and she was induced to sign the same by coercion, duress, threats and undue influence." (Italics supplied.)
On the trial of the issue, after the jury had been impaneled, the parties agreed that the mortgage first mentioned was valid, and the amount of the balance due thereon, and that a decree of foreclosure thereon should be rendered. The truth or not of the italicized averments, as to the second mortgage, was the issue submitted to the jury, resulting in a verdict in favor of the complainants.
The verdict was rendered in open court on September 14, 1938, Judge Alto V. Lee presiding, and the minutes of the trial recite the "Judge, presiding, received the verdict of the jury, retained the same and as the Judge of the Equity side of the Court, took the submission of and held for consideration said causes."
The final decree was entered on the 28th of September, 1938.
Thereafter the defendant, appellant here, on October 25, 1938, made motion to set aside the verdict and presented the same to Judge Lee. The matter was continued from time to time, until the 11th of November, 1938, when it was submitted and taken under advisement, and the court on December 2 entered an order overruling the same.
The contention of appellant that the final decree was entered without formal submission of the cause and without note of testimony by the Register, under Rule 75, is without merit. The minutes of the court show a formal submission without objection, on the verdict of the jury for final decree, and note of testimony was not necessary for the simple reason that there was no testimony to be noted. The testimony had been adduced on the jury trial, and a bill of exceptions was not taken. to preserve the testimony.
The motion for new trial, made after the final decree was entered on the verdict, came too late. Brintle v. Wood et al., 223 Ala. 472, 136 So. 803; Jester v. Jester et al., 225 Ala. 138, 142 So. 523; Ex parte King, 230 Ala. 529, 162 So. 275; Hale et al. v. Cox, 222 Ala. 136, 131 So. 233; Karter v. East et al., 220 Ala. 511, 125 So. 655.
The rulings of the Circuit Court were free from error and the decree of that court is due to be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.