Kingsberry Mortgage Company v. Mauney

PER CURIAM. Kingsberry Mortgage Company, a corporation, appeals from a final decree rendered against it and its corespondents, Jack D. Lee and wife, Dot C. Lee. It appears from the record before us that appellees entered into an oral agreement with Jack D. Lee to construct a dwelling house on some land owned by appellees. To effect the agreement, appellees deeded said Jack D. Lee a small area of land described. in the original bill of complaint filed by appellees as being in the SW}4 of SWJ4, Section 6, Township 10, Range 3 West. The deed from appellees to respondent Lee placed the area in NWj4 of NW}4; likewise a mortgage from respondent Lee and his wife to appellant described the land as being in the NW14 of NW}4, supra. According to the complaint, Jack D. Lee agreed to build the dwelling house for $12,500 and after completion, upon payment of the said sum of $12,500, to reconvey the ■ land and dwelling to appellees, Lance T. .Mauney and wife. While holding title to the lot, Lee mortgaged the same to appellant, which company financed construction. Before completion, respondent Lee abandoned construction without having completed the same. Decrees pro confesso were taken against all of the respondents. Evidence was taken and the trial court, responsive to the complaint, entered a final decree against the respondents. The record fails to show that appellant, Kingsberry Mortgage Company, complied with § 804, Title 7, Recompiled Code of Alabama, 1958. Also see Act No. 471, General Acts 1911, p. 589. The failure of appellant to comply with this section mandates dismissal of this appeal ex mero moht. Rush v. Newsom Exterminators, Inc., 261 Ala. 610, 75 So.2d 112; McKinstry v. Thomas, 258 Ala. 690, 64 So.2d 808; Dinsmore v. Cooper, 212 Ala. 485, 103 So. 460; Bowden v. Bowden, 30 Ala.App. 106, 1 So.2d 316; Ala. Digest, Vol. 2, Appeal and Error, <®:;>323(4). This appeal is dismissed. The foregoing opinion was prepared by BOWEN W. SIMMONS, Supernumerary Circuit Judge, and is adopted by the Court as its opinion. LIVINGSTON, C. J., and LAWSON, MERRILL and HARWOOD, JJ., concur.