Ewing v. First Nat. Bank of Montgomery, Ala. , 228 Ala. 307 ( 1934 )

This case has been before this court before,148 So. 836.¹ It was there held that the bill was subject to the respondents' demurrer in its attempt to escape a tender because a sufficient and accurate statement had not been furnished of all lawful charges essential to a redemption, and that the statement, as to the inaccuracy and incorrectness of said charges, was too vague and indefinite.

After affirmance, the bill of complaint was amended, but we fail to discover any material improvement or substantial change in an attack on the different items of said charges. True, the amendment charged that the item of $425 attorneys' fee was unreasonable, and, as suggested in brief of appellant's counsel, "makes an issue for the trial court to determine." And we may add, if the issue is found in favor of the appellant, it would excuse a tender. The attack is not confined to this item of the statement, but to others and, in a way, condemned on the former appeal. In other words, should the appellant fail to establish his charge as to attorneys' fee, the amended bill puts the respondent at the disadvantage of litigating the correctness of other items of the statement not properly pointed out by the bill either before or since the amendment. The trial court did not err in sustaining the demurrer to the bill as last amended, and the decree of the circuit court is affirmed.

Affirmed.

THOMAS, BROWN, and KNIGHT, JJ., concur.

¹ 227 Ala. 46.