Appeal from Circuit Court, Etowah County; John W. Inzer, Judge.

Action by Jane West against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dec. Dig. § li & Martin, for appellee. 67.*]

Goodhue & Blackwood, for appellant. Cul

5. TELEGRAPHS AND TELEPHONES (8 66*)ing to some of the evidence, and at a later

hour according to other testimony in the case, two ladies, acting on behalf of the plaintiff, delivered the above message to one Long, the tween the sendee and the agent of the telegraph agent of the telegraph company, and paid him W. company, whose business it was to receive and the charges for transmitting the same. deliver it, as to whether he received it, and H. West lived at or near Blue Pond, Ala.; whether he attempted to deliver it, was prop-in fact, about three-quarters of a mile from erly admitted. Blue Pond. He testified that he never receiv

6. EVIDENCE (§ 123*)—DeclarATIONS-ADMIS- to plaintiff's house about 2 o'clock Sunday SIBILITY-RES GESTE.

paring the body for burial. W. H. West paid | rangements for the shipping and burial of the the expenses of getting to Blue Pond with the body Tuesday morning on the Rome & Decatur Railroad. The body was interred in the family burial ground, at Blue Pond, on Tuesday morning. Will West was with his sister-in-law, the plaintiff, at the burial of her husband.

body, these were made by the brother-in-law after he arrived; but his absence during this interval may have caused her to suffer mental pain and distress. This is, of course, upon the theory that he could and would have arrived sooner had the message been delivered promptly; but it is not exactly certain from this record that her brother-in-law could have arrived sooner had the message been promptly delivered. While the evidence shows that there was a train leaving his home station at an earlier hour, which he could have taken had the message been promptly delivered, and that if he could have taken this train he would have arrived at plaintiff's home sooner, yet the evidence, or a part of it, tends to show that this particular train did not run on Sundays, and the evidence indisputably shows that the message was sent on Sunday; so it does not clearly appear that he could have arrived any sooner had the message been promptly delivered. However, all the evidence leaves it uncertain as to this, and it seems to be conceded by counsel that he could have arrived sooner had the message been promptly delivered.

The evidence as to the conversation be

tween the witness West, the sendee of the message, and Dodson, the agent of the telegraph company, whose business it was to receive and to deliver it, as to whether or not he received it, and whether or not he attempt

We find no error in the rulings of the court in striking certain parts of complaint; but the court, after striking certain parts of the complaint, on defendant's motion, seems to have allowed proof of practically the same matters stricken, to wit, the allegation that "plaintiff had two little children," and that "she and her two children were deprived of the comfort (the presence and assistance) of her brother-in-law," were stricken, yet the court allowed proof thereof over defendant's objections and exceptions. In this the court erred. It was proper for plaintiff to prove that she was deprived of the aid and comfort of her brother-in-law, because the message gave notice to the defendant that she was calling upon her brother-in-law for aid and comfort in the hour of her sore distress and need, and that his assistance was needed. But it did not convey any information to the company that she had two small children, and that they needed their uncle's assistance. If they did so need it, there was no evidence. or allegation, that defendant or its agents knew it, or that they could have had this in contemplation when undertaking to promptly send and deliver the message. If it had been ed to deliver it, was proper. This was the so advised, and if the company would be lia-only proper source, through which the sendee ble in damages on that account, it would be could obtain this information, to which he As to these matters, to the children, and not to their mother. In was clearly entitled. this action she can only recover such dam- the defendant company could only act through ages as she suffered, and not such as the chil- this particular agent, and it is, of course. bound therein by his statements and actions, dren may have suffered. because they are within the line and scope of his authority; but the statement that he had been paid $3 for the delivery of the message in question was not admissible against the defendant company. It was not claimed nor shown that such amount was paid to him by any of the parties to the contract or transaction involved in this suit. This, at most, was a mere declaration of the agent as to bygone transactions, and not a part of the res gestæ of the transaction. 2 Mayfield's Dig. p. 59. It was not offered for the purpose of impeaching or contradicting the witness Dodson, and, if not wholly immaterial, it would not be admissible for this purpose, even had it been so offered.

It was proper for plaintiff to prove that she had no means with which to prepare her husband's body for burial, that it was so prepared by others, and that it was for this purpose that she desired her brother-in-law's presence. The message put the telegraph company on notice as to this. What we have said above was as to the rulings of the court on the admissibility of the evidence. The evidence, however, showed that the body was properly prepared for burial before plaintiff's brother-in-law could have possibly arrived; consequently, plaintiff could have suffered no damages on account of the delay or of the absence of her brother-in-law, so far as preparing the body for burial was concerned.

It also appears that plaintiff had no knowledge of the failure to deliver until her brother-in-law arrived; so whatever damages she suffered, recoverable in this action, as for mental pain and anguish, must have resulted from the failure of her brother-in-law to be with her after the time he could and would have arrived had the message been promptly sent and delivered, and before the time at

The counts of the complaint as to which demurrers were overruled were not subject to any ground of demurrer leveled against them.

There was no error in allowing the witness to testify as to what she dictated to the agent to write as the message, and what he read off to her after he had written the message. What she dictated and what he read being the same, and that being the same as the mes

contents of the message, if error, it was with- | danger her life or health, or to create a reaout injury. sonable apprehension of violence that would The judgment is reversed, and the cause is endanger her life or health, and which would remanded.

be essential to warrant a dissolution of the marriage ties, notwithstanding his conduct would be most reprehensible, if what the

SIMPSON, ANDERSON, and MCCLEL- wife claimed was true. LAN, JJ., concur.

It

the line between them so as to throw the
strip in question on his land, is correct, while
the defendant claims that a survey made by
one Craven, which placed the line so as to
throw said strip on his land, is correct.
is shown that the defendant has continuous-
ly cultivated that portion of the strip which
is cleared, and has been and is claiming the
strip as his land.

The timber was cut openly, under claim of right. There is no evidence tending to show that the defendant cut the trees, know

ing that the land belonged to plaintiff. The evidence does not show conclusively that the strip does belong to the plaintiff. In fact, as said by this court when this case was before it at a previous term: "It is impossible to read the evidence set out in the record without reaching the conclusion that the real controversy between the parties is the location of the boundary line." Long v. Cummings, 156 Ala. 577, 580, 47 South. 109, 110. The plaintiff failed to prove such a cutting as would authorize a recovery of the penalty provided by said section of the Code, under our decisions thereunder. Long v. Cummings, supra, and cases cited. Such being the facts of the case, the court erred in refusing to give the general charge requested in writing by the defendant.

The judgment of the court is reversed, and

the cause remanded.

Reversed and remanded.

to the attention of the trial court before rendition of the decree.

Error, Cent. Dig. §§ 1184-1189; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 187.*1

4. PARTIES (§ 51*)-INDISPENSABLE PARTIESOMISSION-SUSPENSION OF CAUSE.

Where it appears during the progress of a cause that indispensable parties have been omitted, the proceedings should be suspended until they are brought in, or the cause dismissed if the complainant, after reasonable opportunity, fails to join them.

[Ed. Note. For other cases, see Parties, Cent.

Dig. §§ 77-82; Dec. Dig. § 51.*]
5. MORTGAGES (§ 581*)-ACCOUNTING-ATTOR-

NEYS' FEES.

Where a note and mortgage executed by decedent, providing for attorneys' fees, was placed in the hands of an attorney for collection, and he filed a claim against decedent's estate before a conversation with the administrator, in which it was agreed that the holder of the mortgage would not exact payment of the debt until summer following, the administrator, on tendersum for the attorney's services up to the time ing payment, was bound to tender a reasonable of such agreement.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. 88 2112, 1669-1679; Dec. Dig. 8 581.*]

6. MORTGAGES (§ 423*)—FORECLOSURE-TIME— EXTENSION.

Where, after claim on a mortgage debt had been filed against decedent's estate, it, was agreed that payment would not be exacted until the following summer, a bill to foreclose, filed August 4th, was not premature.

[Ed. Note.-For other cases, see Mortgages, Dec. Dig. 423.*]

Appeal from City Court of Birmingham;

DOWDELL, C. J., and MCCLELLAN and H. A. Sharpe, Judge. MAYFIELD, JJ., concur.

(165 Ala. 206)

CARWILE et al. v. CRUMP et al. (Supreme Court of Alabama. Feb. 3, 1910.) 1. MORTGAGES (§ 435*)-FORECLOSURE-PAR

TIES.

In a suit to foreclose a mortgage, the deceased mortgagor's heirs are indispensable parties, and his personal representative is a proper party, and hence there is no misjoinder in joining them.

Bill by Mary J. Crump and others against John A. Carwile, as administrator of Z. T. Carwile, and his heirs at law, to foreclose mortgage. Judgment for complainants, and respondents appeal. Affirmed.

Demurrer was filed to the bill, setting up that there was a misjoinder of parties, in that no one had any rights in the matter except the administrator, and that the heirs at law were improperly joined. This demurrer was overruled. The contention as to attorney's fees sufficiently appears in the [Ed. Note. For other cases, see Mortgages, opinion of the court. This seems to be the Cent. Dig. §§ 1282, 1288; Dec. Dig. § 435.*] matter litigated, and the issue was brought 2. PARTIES ($84*)-DEFECTIVE PARTIES-OB-up by a plea of tender on the part of the administrator of the amount due on the mortgage.

JECTIONS WAIVER.

Where a bill is defective for want of proper parties, advantage should be taken of the defect by plea, demurrer, or answer, and, if not so taken, is waived, unless the presence of the absent parties is essential to a disposition of the cause on its merits, in which case objection may be made at the hearing, by the court on its own motion, or on error.

Pinkney Scott, for appellants. W. E. Martin, for appellees.

ANDERSON, J. The bill sought a fore

[Ed. Note.-For other cases, see Parties, Cent. closure of the mortgage and an accounting

Dig. §§ 134-142; Dec. Dig. § 84.*]

3. APPEAL AND ERROR (§ 187*) PARTIES

TRIAL.

DEFECTIVE

NECESSITY OF OBJECTION

AT

to ascertain the indebtedness, and the personal representative was a proper party respondent. Eslava v. New York Co., 121 Ala. 484, 25 South. 1013; Dooley v. Villalonga, Omission of an indispensable party in a 61 Ala. 129. And as the heirs of the deceaschancery case is available on error, without pre-ed mortgagor vious objection at the trial; in order, however, were indispensable parties, to put the trial court in error the absence of there was no misjoinder. McCollum v. Presuch parties must have been known or brought witt, 37 Ala. 573; Batre v. Auze, 5 Ala. 173;

and the administrator, wherein Crump gave the administrator to understand that he would not exact payment of the mortgage debt until summer. He was therefore entitled to such reasonable attorney's fees as had been incurred, and which said amount the administrator should have included in his tender. Whether the sum claimed by Martin was or was not reasonable for what he had done made no difference, as the administrator should have tendered what was reasonable in order to establish his plea of tender. It may be that the assurance given the administrator by Crump that he could pay the debt in the summer would estop the complainants from claiming any fees incurred between that time and the time when he consented to accept the money. Johnson v. Blair, 132 Ala. 128, 31 South. 92. But this would not estop him from the right to include in the mortgage indebtedness reasonable attorney's fees incurred previous to said conversation, and the proof shows that the claim had been turned over to Martin previous to that time, and that he had taken some little action looking to a collection, by filing a statement in the probate office. If, therefore, there was anything due the mortgagees in excess of the amount tendered, they had a right to proceed with a foreclosure suit to collect the debt and to a reasonable attorney's fee for so doing. Nor can it be said that the complainants would not be entitled to fees for a foreclosure, because premature and in violation of a promise to wait until summer for the money, as the bill was not filed until August 4th-the last month of summer.

Erwin v. Ferguson, 5 Ala. 158; Kennedy | said claim and that this was done before v. Kennedy, 2 Ala. 573; Jennings v. Jen- the conversation between James D. Crump kins, 9 Ala. 286. The general rule is that if a bill is defective for the want of proper parties advantage should be taken of the defect by plea, demurrer or answer, and if not so taken the objection is waived. The rule is subject to the exception that if the cause cannot be properly disposed of on the merits, without the presence of the absent parties, the objection may be made at the hearing, or, on error, it may be taken by the court ex mero motu. Prout v. Hoge, 57 Ala. 32. The omission of an indispensable party in a chancery case is available on error, without previous objection. Powe v. McLeod, 76 Ala. 420, and cases there cited. It may be that a decree would be valid and binding as to all the heirs present, but if at any time, during the progress of the cause, it should appear that indispensable parties are omitted, the proceedings should be suspended until they are brought in, and the cause should be dismissed, if the complainant, after reasonable opportunity to do so, fails to make them parties. To sanction the proceeding with a cause, in the absence of necessary parties known to the court, would encourage a practice violative of the fundamental principles of equity, and which would provoke rather than terminate litigation. In order, however, to put the trial court in error, the record should show that the absence of some of the necessary parties was known or brought to the attention of the trial court before the rendition of judgment or decree on the merits. In the case at bar the suggestion of other heirs was not made until after the rendition of the decree on the merits, and while the trial court could have suspended further proceedings until they were brought in, yet reversible error was not committed by a failure to do so. Moreover, it does not appear that the parties were heirs. The affidavit sets out that they were granddaughters of a brother of the deceased mortgagor and that their mother was dead, but does not aver that the grandfather of the girls or brother of the deceased mortgagor was dead.

The chief question of controversy in this case is one of attorney's fees. If the complainants had incurred no attorney's fees when the respondent administrator tendered the amount due on the mortgage, then it should have been accepted, and the question of tender should have been adjudged in favor of the respondent. The note and mortgage both provide for attorney's fees, and, if the complainant had incurred any attorney's fees towards a legitimate effort to collect the debt, he was entitled to same and which should have been included in the tender. The proof shows that the claim had been placed with Martin for collection, and that he had filed a verified statement of the

The decree of the city court is affirmed.
Affirmed.

DOWDELL, C. J., and SAYRE and EVANS, JJ., concur.

(165 Ala. 567)

C. D. CHAPMAN & CO. v. METCALF.
(Supreme Court of Alabama. Feb. 10, 1910.)
CHATTEL MORTGAGES (§ 225*)-CONVERSION
OF PROPERTY-RIGHTS OF JUNIOR MORTGA-
GEE.

of a senior mortgagee that he had picked out
A mortgagor of cotton told the transferee
six bales, which the transferee could take in
payment of the mortgage, and the transferee
told the mortgagor to sell it and pay the money
mortgagee could not sue the purchaser of the
to him, which was done. Held, that a junior
cotton as for a conversion, since there was a
constructive delivery of the cotton to the trans-
feree, and he held the legal title, and authorized
the mortgagor holding possession to sell it, and
hence the junior mortgagee had no title, and
no right to possession.

[Ed. Note. For other cases, see Chattel Mortgages, Dec. Dig. § 225.*]

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.