Barron v. Robinson

• Court: Alabama Supreme Court
• Writing for the Court: HARALSON, J.
• Citation: Barron v. Robinson, 13 So. 476, 98 Ala. 351 (Ala. 1893)
• Decision Date: 20 June 1893
• Parties: BARRON v. ROBINSON ET AL.

13 So. 476

98 Ala. 351

BARRON v. ROBINSON ET AL.

Supreme Court of Alabama

June 20, 1893

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

Action by J. R. Robinson and others against J. R. Barron. Judgment for plaintiffs. A petition for new trial was denied, and defendant appeals. Affirmed.

The petitioner, appellant here, presented his petition to the Honorable John P. Hubbard, judge of the second judicial circuit, within four months after a judgment for $1,000 had been recovered against him in the Pike county circuit court at the suit of J. R. Robinson and others, praying for a rehearing, under section 2872, Code. The grounds for this application as disclosed are that on the trial of the cause in which said judgment was rendered against him the defendant was prevented from making his defense in this: that the plaintiffs in that judgment had another suit against defendant, which stood for trial at the same time as the one in which judgment was rendered; that about three months before the rendition of said judgment defendant gave plaintiffs' attorney his note for $30, which was taken in full settlement for the damages in both of said suits, and defendant believed no question remained in the case but one of costs; that it was agreed, and it was his understanding and belief, that both suits were settled by the note, and in consequence he had no witnesses summoned for his defense in either case, and he did not inform his attorney, before the trial, was his defense was, and when the case was called and on trial he was surprised when the plaintiffs' attorney swore that said note was not taken in payment of both suits that he did not know, and was not informed, that he would have to meet that issue, until he had answered ready for trial, and plaintiffs' attorney testified it was not the agreement that said note was given in compromise of both suits. Defendant testified against the plaintiffs' attorney on the trial, and swore that said note was given in settlement and compromise of both of said suits. The petitioner sets up at least two defenses, one of which was that said suit was for cutting trees on plaintiffs' land and that they were not cut down by defendant, or by his direction, but were cut by another person, against his consent, and contrary to his directions, and that he had two witnesses, whose names he gave, who could corroborate him in that statement. The plaintiffs in the judgment demurred to the petition for insufficiency on many grounds, which demurrer was sustained, and defendant amended his petition. The plaintiffs then presented their answer to it. The answer stated that one of said suits was for the rent of land for the year 1890, and the other was for the statutory penalty of cutting trees off of plaintiffs' lands. That during the pendency of said suits defendant represented to J. D Gardner, one of plaintiffs' attorneys, that he had paid to another of plaintiffs' attorneys, Mr. Wiley, $25 on the rent, and requested said Gardner to allow the balance of the rent-$30-to be paid in three monthly installments of $10 each, and to this request said Gardner acceded, and took from defendant a note in writing, the original of which was attached to the answer, and which reads: "For rent of their place last year I hereby agree to pay Robinson, Taylor & Co., or bearer, thirty dollars, in monthly installments of ten dollars each, commencing from the 15th of the month, and I waive all exemptions in favor of the payment of this debt." That at the time said instrument was executed nothing was said about the settlement of the suit for cutting the trees, and the note was only given to settle what defendant said was a balance due on the rent of plaintiffs' lands for the preceding year. That when said suit for cutting the trees was called the defendant went to trial on the plea of not guilty, and made defense that he had made...