Barnett v. Wilson

• Decision Date: 13 February 1902
• Citation: 31 So. 521,132 Ala. 375
• Parties: BARNETT v. WILSON.
• Court: Alabama Supreme Court

31 So. 521

132 Ala. 375

BARNETT v. WILSON.

Supreme Court of Alabama

February 13, 1902

Appeal from circuit court, Geneva county; John P. Hubbard, Judge.

Action by W. J. Wilson against W. W. Barnett. Judgment for plaintiff. Defendant appeals. Affirmed.

Espy Farmer & Espy and J. J. Morris, for appellant.

Sollie & Kirkland and W. O. Worthy, for appellee.

HARALSON J.

1. Before the trial the plaintiff gave the defendant notice to produce the notice given to him to mark the record of the mortgage satisfied. The defendant produced a written notice which he testified was the one he received from the plaintiff. It was addressed to defendant and requested him to go to the office of the judge of probate of the county and mark the note and mortgage given by him to defendant on the 17th February, 1897, payable on 1st September thereafter, and recorded in Mortgage Book 13, p. 52, satisfied on the margin of the record.

The plaintiff testified that this was not the notice he gave defendant, and he produced a copy of the one he testified he gave or sent to defendant, which described a mortgage of the same date as the one defendant produced and payable at same time, but it was described as payable to Bean & Barnett instead of to W. N. Barnett and as recorded in Mortgage Book 18, p. 52, instead of in Book 13 of Mortgages, as in the other notice.

The defendant objected to the introduction of the paper, because it was secondary evidence, and notice had not been given to produce the original. But notice had been given to produce the original, and failing to produce it, plaintiff was entitled to introduce what he swore was a copy of it. Whether or not it was a copy, was a question for the jury under all the evidence.

2. The plaintiff introduced in evidence in the beginning, without objection, the original mortgage given by him to Bean &amp Barnett, of which the proof showed that defendant became the owner, together with the indorsements thereon, from which it appeared from the certificate of the probate judge thereon that it was filed on the 27th of February, 1897, and recorded in Book 18 of Mortgages at page 52.

Further on in the course of the trial, the plaintiff offered in evidence a transcript of the record of the mortgage, which the judge of probate certified to be a true, correct and complete copy of the mortgage as it appeared on the record of the probate office of Coffee county, Ala., in Book 18, p. 52 (and that the record of said mortgage is not marked satisfied). The defendant objected, because the record itself was the best evidence, and a proper predicate had not been laid for the introduction of the transcript. The court admitted it, with the exception of the words included in parenthesis above, and that part of the certificate was excluded, and the jury instructed that it was not before them, and must not be considered as evidence that the mortgage was not satisfied. In this there was no error. The original mortgage, with the indorsement of the probate judge of its record, had been previously introduced by plaintiff without objection; and this certified transcript,--with the objectionable words, "and the record of said mortgage is not marked satisfied," stricken by the court from the certificate as not properly belonging to it,--was merely cumulative of the evidence, already offered, in the shape of the original mortgage and its record, and its certified transcript, like the original, was unobjectionable as additional proof to prove a relevant, material fact. Code, § 1816, prescribes that "all transcripts of books or papers required by law to be kept in the office of any public officer, when certified by the proper custodian thereof, must be received in evidence in all courts." ...