ABC Supermarket, Inc. v. American Emp. Ins. Co.

• Decision Date: 29 August 1968
• Docket Number: 5 Div. 823
• Citation: 214 So.2d 291,283 Ala. 13
• Parties: A B C SUPERMARKET, INC., et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY.
• Court: Alabama Supreme Court

Page 291

214 So.2d 291

283 Ala. 13

A B C SUPERMARKET, INC., et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY.

5 Div. 823.

Supreme Court of Alabama.

Aug. 29, 1968.

Gray & Seay, Montgomery, for appellants

Russell, Raymon & Russell, Tuskegee, for appellee.

LAWSON, Justice.

This is a suit on a promissory note brought in the Circuit Court of Macon County by American Employers Insurance Company, a corporation, against ABC Supermarket, Inc., A. C. Bulls and others as trustees of ABC Supermarket, Inc., a dissolved corporation.

The complaint contained one count, which reads:

'And the Plaintiff claims of the Defendants the sum of FOUR THOUSAND FIVE HUNDRED DOLLARS ($4,500) due by promissory note made by ABC Supermarket, Inc., a Corporation, on September 12, 1963, to Nolin Manufacturing Company, Inc., a Corporation, and payable on the 10th day of September, 1964, with interest thereon, which said note was duly assigned for valuable consideration to American Employers Insurance Company, a Corporation, on July 30, 1964, said note being duly assigned and endorsed to the Plaintiff before maturity.

'Plaintiff further claims the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500) as a reasonable attorney's fee which the Defendants agreed to pay by virtue of a clause contained in said note.'

The defendants filed what they denominated an answer to the complaint but which the trial court and the parties treated as constituting five separate pleas, which read:

'1. The Defendants saith that the obligation, the demand for the recovery of which this suit was brought had been paid prior to the commencement of this action.

'2. The Defendants affirmatively aver that the Plaintiff had notice of the equities existing between Defendants and the Plaintiff's assignor of the said note.

'3. The Defendants affirmatively aver that Plaintiff had notice of defect of title of its assignor of the said note.

'4. The Defendants affirmatively aver that the Plaintiff did not receive the said note in the ordinary course of business.

'5. The Defendants affirmatively aver the following: On July 8, 1958 and on September 26, 1958, respectively, Defendants (sic) ABC Supermarket, Inc., as conditional buyer, entered into separate conditional sales contracts for the purchase of certain chattels, with Nolin Manufacturing Company, Inc., as conditional seller under both contracts. Said contracts were filed for record in the Office of Judge of Probate of Macon County, Alabama prior to the execution of the subject note, and appear in the records of said Office respectively in Mortgage Book 268, at Page 458 and Mortgage Book 268, at Page 461. At all times pertinent hereto, the chattels remained on the premises of Defendant, ABC Supermarket.

'Each of the said contracts provided, in part:

"Buyer further agrees to keep said property insured, at Buyer's own expense, in the name of the holder hereof, against loss or damage by fire or theft, with insurance companies acceptable to the holder hereof for an amount not less than the amount owing hereunder, said policies to be delivered to the holder hereof, and if Buyer fails to so insure, the holder hereof shall have the right to do so at the Buyer's expense.'

'The Plaintiff issued policies of insurance against loss of said chattels. Thereafter on or about, to-wit, September 10, 1963, Defendant ABC Supermarket 'The said chattels were destroyed by a fire which destroyed the entire plant of Defendant ABC Supermarket, on or about to-wit, May 14, 1964. Pursuant to the terms of the said insurance policies, Plaintiff paid Nolin Manufacturing Company for the loss of said chattels. On or about the time of said loss payment, and after the date of said fire, Nolin Manufacturing Company assigned and transferred the subject note to Plaintiff.

executed the subject note with Plaintiff's assignor, Nolin Manufacturing Company, as payee thereof, which said note represented additional security for the payment of monies due under said contracts.

'The Defendants allege that in view of the foregoing, the said subject note was paid by payment of the insurance loss payment; that the Plaintiff had actual knowledge of the existence of the said contracts; that the Plaintiff knew that the subject note was additional security for the payment of the said contracts; that Plaintiff knew of the destruction of the entire plant of Defendant ABC Supermarket, prior to the time it was assigned the subject note.'

The defendants demanded a trial by jury.

Plaintiff's demurrers to Pleas 2, 3 and 4 were sustained but demurrers to Pleas 1 and 5 were overruled.

Plaintiff filed replications as follows:

'1. For that the amount sued for has not been paid by the Defendant.

'2. For that the Plaintiff purchased the note sued upon from Nolin Manufacturing Company, Inc. for valuable consideration before maturity and without a notice of any equities, or defenses, between the defendants and Nolin Manufacturing Company.

'3. For that the payment to Nolin Manufacturing Company, Inc., was not on a policy issued to the defendants or issued under and by virtue of the clause contained in the conditional sales contracts referred to in Plea no. 5.'

The defendants joined issue on the replications. Thereafter the defendants filed a 'Motion for Continuance' and a 'Motion to Dismiss.' Both of those motions were grounded on allegations to the effect that there was a similar action pending in the 'United States District Court for the Northern District of Alabama, Southern Division, * * *' These motions were denied by the trial court. After the cause had been set for trial the defendants filed a 'Renewal of Motion for Continuance' assigning the same grounds as in the original motion for continuance. The last filed motion for continuance was overruled.

The defendants' demand for a jury trial was apparently withdrawn, for the record shows that 'THIS CAUSE came on to be heard before the HONORABLE L. J. TYNER, Presiding Judge, of the Fifth Judicial Circuit of Alabama, and without a Jury, * * *'

At the conclusion of the hearing the trial court rendered a judgment in favor of the plaintiff and against the defendants in the amount of $5,972.50, which amount included the face amount of the note sued on, interest and attorney's fees. The defendants were taxed with the costs.

After their motion for new trial was overruled, the defendants appealed to this court.

We will consider those assignments of error which are adequately argued in brief of appellants in the order in which they are argued in that brief.

Assignment of Error No. 4 reads: 'The Court erred in overruling Appellants' Motion to Dismiss and Motion to Continue.' There is no merit in this assignment of error. Pendency of a former suit for the same cause of action can be availed of as a defense only by plea in abatement. Holley v. Younge, 27 Ala. 203; Herrington v. City Moreover, if the said motions be considered as pleas in abatement they were filed too late. W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375.

of Eufaula, 36 Ala.App. 348, 55 So.2d 758. See Strother v. McCord, 222 Ala. 450, 132 So. 717; Logan v. O'Barr, 271 Ala. 94, 122 So.2d 376. It would be without benefit to appellants if we ignored the captions of the two motions presently under consideration and treated those motions as efforts on the part of counsel to plead in abatement, because neither motion is verified. Where the facts averred in a plea in abatement do not appear on the record, the plea must be verified. § 226, Title 7, Code 1940; Hart v. Turk, 15 Ala. 675; Hall v. Wallace, 25 Ala. 438; Moore Bros. v. Cowan, 173 Ala. 536, 55 So. 903; Dupuy v. Wright, 7 Ala.App. 238, 60 So. 997.

It is interesting to note that one of the exhibits to the first motion to dismiss is a memorandum which was filed in the Federal court proceeding and which was signed by the attorneys who represent appellants on this appeal, wherein appears the following language:

'1. American Employers Insurance Company-Nolin Manfacturing Co. This claimant has filed a suit in the Circuit Court of Macon County, Alabama. Copies of the pleading in that case is a part of the record in this case. All of the parties are before the Court, the Court has jurisdiction of the subject matter and the Claimant has filed a claim herein, this Court should precede (sic) to decide this claim. By the Claimant having filed its claim in this Court, it amounts to an abandonment of its suit pending in the Circuit Court of Macon County, Alabama.' (Emphasis supplied)

So it appears that counsel for appellant took the position in the Federal court that the instant suit was filed in Macon County prior to the time the claim against the appellants was filed in the Federal court.

What has been said in regard to appellants' Assignment of Error No. 4 disposes of their Assignment of Error No. 5, which is to the effect that the trial court erred in overruling appellants' 'Renewal of Motion for Continuance' and of Assignment of Error No. 9 which reads: 'The Court erred in proceeding to hear this cause after it had been notified that its jurisdiction had been pre-empted by a concurrent court having obtained prior jurisdiction over the parties and the subject matter.'

Appellants argue Assignment of Error No. 6, which reads: 'So much of the Court's order that sustained Appellee's demurrer to Pleas 2, 3 and 4 was error.' In order for an assignment of error so drawn to avail, there must have been error in sustaining demurrer to each of the three pleas mentioned in the assignment of error. If one of the pleas was subject to the demurrer interposed, then Assignment of Error No. 6 is inefficacious.--Sovereign Camp, W.O.W v. Adams, 204 Ala. 667, 86 So. 737. See Middleton v. Western Union Telegraph Co., 197 Ala. 243, 72 So. 548; Beason v. Sovereign Camp, W.O.W., 208 Ala. 276, 94 So. 123; Bryan v. Day, 228 Ala. 91, 151 So. 854; United Insurance Co. of America v. Pounders, 279 Ala. 410, 186 So.2d 125.

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