Bluthenthal v. I. Trager & Co.

• Decision Date: 23 January 1902
• Citation: 31 So. 622,131 Ala. 639
• Court: Alabama Supreme Court
• Parties: BLUTHENTHAL ET AL. v. I. TRAGER & CO. ET AL.

31 So. 622

131 Ala. 639

BLUTHENTHAL ET AL. v. I. TRAGER & CO. ET AL.

Supreme Court of Alabama

January 23, 1902

Appeal from city court of Gadsden; John H. Disque, Judge.

Suit by I. Trager & Co. and others against Bluthenthal & Bickert to have a mortgage decreed to be an assignment. From a decree in favor of the plaintiffs, the defendants appeal. Affirmed.

Burnett & Culli, for appellants.

DOWDELL J.

The bill in this case was filed by appellees under section 2158 of the Code of 1896, which relates to general assignments. It is contended by counsel for appellants that this statute was declared unconstitutional in the case of Supply Co. v Lucas, 119 Ala. 202, 24 So. 416, and therefore void. In that case it was said by this court, having then under consideration the act of February 16, 1897 (Acts 1896-97, pp 1089, 1090), and which was there declared void as being offensive to section 2 of article 4 of the constitution "Since the rendition of the judgment and the filing of the bill, the Code of 1896 has become operative, into which the enactment is substantially introduced; the two first sections forming part of the Civil Code (section 2158), and the third section part of the Criminal Code (sections 4759). If this enactment had formed parts of the Code at the time of its adoption, all infirmities of legislative procedure in its original enactment would have been cured. Bales v State, 63 Ala. 30. But it was not then parts of the Code, and was not re-enacted as parts of it. It was incorporated or introduced by the commissioner, in obedience to the legislative mandate that all laws of enactment at the session of the adoption of the Code should be introduced therein. Whatever of validity such laws may have is derived from their original enactment, and not from their introduction, or the manner of their introduction, into the Code." It does not follow from this that section 2158 as it now stands is invalid in whole, but, on the contrary, whatever part of that section as now contained in the published volume of the Code that was in the Code at the time of the act of adoption is preserved, and is still operative, by force of the act of adoption, and only such parts, or so much of it, as was introduced by the commissioner is invalid and inoperative. The manuscript volume of the Code, on file in the office of the secretary of state, which was adopted by the act of February 16, 1897, contains the act of ...