People's Sav. Bank v. Union Bank & Trust Co. , 204 Ala. 406 ( 1920 )

The appellee, as administrator of the estate of Mollie T. Ware, deceased, filed this bill against the appellant for an accounting, and, pending the hearing, an injunction to prevent the foreclosure of a mortgage upon intestate's lands. The injunction pendente lite was issued as prayed, but was later dissolved. The submission of the cause was had in June, 1917. The decree awarding complainant relief in respect of the adjudication of the subject of the account was rendered the 5th day of November, 1918. Since terms of the court were held after this submission, the appellant asserts, without citation of any authority, that "it is irregular and erroneous to render a decree" under such circumstances. In the absence of any objection by the parties, it must be assumed that they were content with the original submission of the cause to the court, and that no resubmission in term time or otherwise was necessary to invest the court with full power and authority to determine the cause. There is no merit in this contention of the appellant.

The only other criticism of the decree is that the court did not "order a statement of said account," proceeding itself to ascertain and establish a certain sum of money as the amount due. The decree would have the better conformed to the proper practice, if it had expressly adjudged the complainant's right to an accounting, and have then proceeded to order a reference in accordance with appropriate directions. However, the decree indicates unmistakably the judicial conclusion that the right of the complainant to an accounting had been established. The mere clerical omission to so adjudge in express terms was a fault in the structure of the decree that was of no prejudice to appellant. The voluntary assumption by the court of the heavy burden of itself stating the account from the written evidence before it, instead of referring the matter to the register, was unusual. A discretion is reposed in the courts exercising equity jurisdiction to determine whether a matter of account should be referred to the register for hearing and report. See Levert v. Redwood, 9 Port. 79; Chambers v. Wright,52 Ala. 444, 451; Richardson v. Horton, 139 Ala. 350, 35 So. 1006. And, so far as we are now advised, this court has not reversed a decree because the court took the burden of stating an account between the parties, instead of ordering a reference for that purpose. This action of the court cannot be assumed to have led to an erroneous result, and the appellant does not contend that such was its effect; nor is it even asserted for the appellant that a different result would have been attained upon a reference. The grounds upon which a reversal is sought are not well taken.

The decree is affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.