Opinion
SC 1061.
June 19, 1975. Rehearing Denied August 7, 1975.
Appeal from the Talladega County Circuit Court, William P. Powers, J.
George S. Brown, Birmingham, for appellant.
The severance of legal and equitable claims, one from another, in a case involving both, cannot be justified under the provisions of Rule 42(b) of the Alabama Rules Of Civil Procedure. Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988; Marks Food Corp. v. Barbara Ann Baking Co. (C.A. 9th, 1960), 274 F.2d 934; Columbia Irrigation District v. United States (C.A. 9th, 1959), 268 F.2d 128; Frasier v. Twentieth Century-Fox Film Corp. (D.C.Neb., 1954), 119 F. Supp. 495. A suit seeking the avoidance of a foreclosure requires no tender. Raleigh Realty Co. v. Lagomarsino, 237 Ala. 315, 186 So. 692.
C. W. McKay, Jr., Sylacauga, for appellees.
A bill in the nature of a bill of review must set up the judgment or decree in question, the proceedings which led to it, and the circumstances of fraud upon which it is sought to be impeached. To give the bill equity it must show fraud in the procurement of the judgment or decree, the kind of fraud upon which is based jurisdiction in equity to annul judgments and decrees of courts of competent jurisdiction. Boothe v. Shaw, 214 Ala. 320, 107 So. 814. Payment nor tender of the amounts necessary to redeem from a mortgage foreclosure sale is not in all cases a prerequisite to the filing or maintaining of the bill, yet it is always such to the perfection of the right to redeem, and the bill must offer to pay or tender such amounts when ascertained, and show a valid excuse for not doing so before the filing of the bill as well as a good reason why the aid of the court is necessary for this special purpose. Francis v. White, 142 Ala. 590, 39 So. 174; Francis v. White, 160 Ala. 523, 49 So. 334; Continental Development Corporation, Inc. v. Vines, et al., 289 Ala. 648, 270 So.2d 661. In equity, a party is not entitled, as of right, to a jury to decide the issue of fact unless it is so provided by statute or constitution. In the absence of such provision, the power and duty to determine finally all questions of law and fact devolve upon the court. Lucas v. Scott, 247 Ala. 183, 24 So.2d 540; Curb v. Grantham, 212 Ala. 395, 102 So. 619; 30A C.J.S. Equity § 495, p. 526. The Court in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, or of any separate issue or of any number of claims. Any claim against a party may be severed and proceeded with separately. The Alabama Rules of Civil Procedure , Rule 20(b), Rule 21, Rule 42(b).
The real issue involved in this case was whether the defendant bank had fraudulently failed to obtain credit life insurance on one of its debtors.
Georgia Hammonds Johns, formerly Georgia Hammonds, filed suit against the bank and its vice-president and sought (1) to set aside a mortgage foreclosure, (2) to set aside a judgment in a detinue suit in which the bank recovered items of personal property used for collateral, and (3) to recover punitive damages.
Complainant claimed that the bank fraudulently failed to obtain credit life insurance on her late husband, James E. Hammonds, and as a consequence, there were no insurance proceeds available to pay the debt when her husband died. The bank foreclosed the mortgage and filed the detinue suit when the debtor defaulted.
The trial court severed the case into three parts: (1) the mortgage foreclosure claim, (2) the law judgment claim, and (3) the fraud claim. The fraud charge was tried before a jury, which found in favor of the bank and its officer.
The trial judge granted summary judgment on the claim that the judgment in the detinue suit should be set aside. The trial court also refused to set aside the foreclosure on the real property and rendered judgment on the jury verdict which was adverse to the complainant. We affirm.
The thrust of the complaint was that the bank fraudulently failed to obtain the credit life insurance on complainant's late husband and because of this failure, the bank foreclosed on the real estate and obtained a judgment to recover the personal property. As we have pointed out, the jury verdict answered the main question adversely to the complainant. In view of this, we do not think the trial court erred in refusing to set aside either the judgment at law or the foreclosure.
With regard to the detinue judgment, there was neither averment nor proof that the judgment was obtained by fraud, accident or mistake, without negligence on the part of the complainant, and that complainant had a meritorious defense. Consequently, the court did not err in denying her relief on that part of her complaint. See St. John et al v. Campbell, 250 Ala. 380, 34 So.2d 584 (1948).
Although complainant asked for the court to determine the amount necessary to redeem the real property, she nowhere tendered such amount nor did she offer to do equity. In Contintntal Development Corp., Inc. v. Vines, 289 Ala. 648, 270 So.2d 661 (1973), this Court said:
"We have reviewed the transcript of evidence carefully and are constrained to agree that there is absolutely no testimony or evidence to support appellant's allegations of fraud and deceit or that usury was charged on the mortgage. Since the proof is lacking in this latter respect, appellant's right of redemption, if any, must rest on its general averment of a desire to redeem and its offer to do equity. But, as we have already pointed out, the bill does not contain the averments, necessary to support a bill to redeem, of payment or tender or of a valid excuse for the failure to do so before filing, and it does not offer to pay the amounts due under the mortgage when ascertained by the court. Such a bill is without equity. Francis v. White, supra. In Hogan v. City of Huntsville, 288 Ala. 595, 264 So.2d 155, we said this with respect to a bill that is without equity.
" '* * * [I]f a bill lacks equity, it cannot support a decree for relief and so, even if there is no demurrer attacking the bill for want of equity, we must look to see if the bill under consideration contains equity. Edmondson v. Martin, 256 Ala. 73, 53 So.2d 613; Howle v. Alabama State Milk Control Board, 265 Ala. 189, 90 So.2d 752.'
"Therefore, we are of the opinion that the appellant has failed to prove any of the allegations which gave equity to the bill, and the mere expression of a desire to redeem and an offer to do equity, the only things left in the bill, were not sufficient to support equitable relief."
Therefore, the court did not err in refusing to set aside the foreclosure on the real property.
Appellant argues that the trial court should not have severed the fraud aspect and tried only that portion before a jury, but each claim should have been tried by a jury. We find no error here. Rule 42(b), ARCP.
Affirmed.
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.