Opinion
6 Div. 547.
May 17, 1934. Rehearing Denied June 28, 1934.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Monette Taylor, of Birmingham, for appellant.
Where a defendant in a suit at law may, by a proceeding in equity, be clothed with a legal right which will afford him a legal defense to such suit at law, the court upon motion of defendant should transfer the cause at law to the equity side of the docket in order that the full rights of the parties may be determined in the proceeding in equity. Code 1923, § 6490; Stevens v. Hertzler, 114 Ala. 563, 22 So. 121. The affirmative charge should not be given in favor of plaintiff under any count of the complaint where there is a variance between the allegations of such count and the proof offered in support thereof, but such charge should be given for defendant. Circuit Court Rule 34; C. of Ga. R. Co. v. Simons, 150 Ala. 400, 43 So. 731; Wilkinson v. King, 81 Ala. 156, 8 So. 189; Carter v. Shugarman, 197 Ala. 577, 73 So. 119; Sanders v. Gernet Bros. L. Co., 221 Ala. 469, 129 So. 46; C. of Ga. R. Co. v. Pope, 221 Ala. 145, 127 So. 835.
Erle Pettus, of Birmingham, for appellee.
A suit at law will not be delayed for the purpose of having another judicial proceeding for the alleged purpose of reforming the instrument sued upon. Pieme v. Arata, 202 Ala. 427, 80 So. 811; Stephenson v. Harris, 131 Ala. 470, 31 So. 445; Goulding Fertilizer Co. v. Blanchard, 178 Ala. 298, 59 So. 485; Stewart v. Wilson, 141 Ala. 408, 37 So. 550, 109 Am. St. Rep. 33. The averments of the bill are not sufficient to warrant reformation. The motion to transfer was properly denied. White v. Henderson-Boyd L. Co., 165 Ala. 218, 51 So. 764; Holland-Blow Stave Co. v. Barclay, 193 Ala. 204, 69 So. 118; Hammer v. Lange, 174 Ala. 340, 56 So. 573. Amendment of the complaint removed the objection pointed out by defendant. There was no variance, and plaintiff was properly given the affirmative charge.
This cause was submitted along with the appeal of this same appellant against the said A. S. Daniel et al., which latter case involved the reformation of the indorsement by appellant of the notes sued on in this case.
The appellant assigns for error the order of the court refusing to transfer the cause, on its motion, to the equity docket.
It is firmly settled by the rulings of this court that the denial of a motion to make such a transfer is not reviewable on appeal. Wiggins et al. v. Stewart Bros., 215 Ala. 9, 109 So. 101; Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916; Fountain v. State, 211 Ala. 589, 100 So. 892.
The statute makes no provision for such appeal, and confessedly the fact that the cause may proceed, after a denial of the motion, to judgment in the law court against the defendant, will not bar him of his right to assert his equitable defense in a court of equity, and to obtain a perpetual injunction against the enforcement of the collection of the judgment. Stevens v. Hertzler, 114 Ala. 563, 22 So. 121; Bradford v. National Surety Co., 207 Ala. 549, 93 So. 473; Brothers v. Russell Duke et al., 195 Ala. 643, 71 So. 450.
There is no merit in the other questions presented by the appeal. The instruments sued on were promissory notes executed by the Daniel Furniture Company, Inc., to the defendant, and by the defendant indorsed to J. M. Rowall, and by Rowall to L. C. Daniel, and the plaintiff bought them of said L. C. Daniel, who indorsed them in blank.
There was no evidence in the case that the notes had been paid. Under the pleading and evidence, the plaintiff was due the affirmative charge, both as to count 1 (as amended) and count 2.
It follows, therefore, that the court was not in error in giving plaintiff's requested general charges under count 1 as amended and count 2.
The judgment of the circuit court under the pleading and proof is due to be, and is, affirmed.
Affirmed.
GARDNER, THOMAS, and BROWN, JJ., concur.