Summary
In State v. New Orleans, 151 La. 24, 91 So. 593, this court held that the rate-making power had been delegated by the state to the municipality in general terms; that this power had not been impaired by the Constitution of 1921; and that the power to regulate, supervise, and control included the power to make rates.
Summary of this case from McNeely v. Town of v. DaliaOpinion
6 Div. 165.
October 27, 1921. Rehearing Denied November 24, 1921.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
A. Latady, of Birmingham, for appellant.
The amendments relate back and take effect as of the filing of the original bill. 205 Ala. 96, 87 So. 165. The demurrer was general, and should have been overruled. 204 Ala. 336, 85 So. 768; 204 Ala. 269, 85 So. 386; 204 Ala. 108, 85 So. 382, 10 A.L.R. 1589; 204 Ala. 636, 87 So. 105. The respondents were all chargeable with notice. 205 Ala. 96, 87 So. 165.
Erle Pettus, of Birmingham, for appellees.
Brief of counsel did not reach the Reporter.
The bill of complaint, as last amended, presents two prayers for relief in the alternative, the two aspects of the bill being founded on inconsistent states of facts, charged as true only in the alternative. As to such bills, it has been held that "each alternative must show a right of action." A. C. L. R. Co. v. Woolfolk, 178 Ala. 190, 59 So. 633. And, there being no positive affirmation of the truth of either set of facts, any demurrable defect in either alternative aspect may be properly reached by a demurrer addressed to the bill as a whole.
In this view, without passing upon the sufficiency of the bill in its second aspect, the trial court sustained the demurrer to the bill as last amended, on the ground that, as to its first alternative aspect, the allegations of fact were insufficient. We think the ruling of the court was free from error.
A bill for statutory redemption from a purchaser at mortgage foreclosure sale, or his grantee, must show that the respondent is such a purchaser or grantee, in privity with the mortgage title; and also it must show a payment into court of the redemption money previously tendered. The allegation that the respondents Betty Scott and A. J. Holcombe jointly own and control the property does not show that they hold it in privity with the mortgage, as purchasers or grantees thereunder.
And the allegation that complainant tendered to said Holcombe the purchase money with 10 per cent., and all other lawful charges, imposes upon complainant the duty of bringing the money into court as a prerequisite to redemptive relief. The statute (Code, § 5751) relieves a complainant of that duty only when he does not know the amount that is due, and the purchaser or his grantee has failed, for 10 days after written demand, to furnish him with an itemized statement of the debt and all lawful charges, as required by section 5748. In each of these particulars, the bill, in its alternative aspect for redemption, was clearly defective, and the defects were pointed out by apt grounds of demurrer.
It is not improper to add that, as to its second alternative, that is, as a bill by a tenant in common to enforce his rights as a constructive coredemptioner, the bill clearly contains equity. But, under the present structure of the bill, the independent merit of that aspect cannot be considered or given effect.
The decree of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.