Hollinger v. Branch Bank at Mobile , 8 Ala. 605 ( 1845 )

ORMOND, J..

This was a bill to foreclose a mortgage upon which the ordinary decree was made. The only objections now urged against it are, that the subpoena was served on Mrs. Hollinger only five days previous to the decree, and that there is no sufficient allegation in the bill, that the debt was not paid.

The first objection depends upon the construction of the 4th rule of Chancery practice, which declares, that “ Femes covert-may be made defendants, by service of subpoena upon their husbands,” unless th,e object of the bill is to affect the separate estate of the wife. It is insisted, that although the subpoena may be served on the husband, it must issue-against the wife, which Was not done in this case. The rule does not require a separate subpoena against the wife, nor are we able to.see what benefit would result from it, unless she had a separate estate; we think there has been a compliance with the rule.

The other objection is alike untenable. , The allegation is, that “Adam C. Hollinger, has wholly failed and refused to pay the same, (the promissory note,) whereby the legal estate to the said premises has become absolute in your orator.” This is certainly sufficient, especially as the defendants did not appear and answer. Such an allegation would be a sufficient breach in a suit at law upon the note, against the principal, of any bne, of the parties to the note, and it would not be necessary to alledge that the, parties not sued had not paid it. ' . \ !

Let the decree be affirmed.