Broadus v. Russell

• Citation: 49 So. 327,160 Ala. 353
• Parties: BROADUS ET AL. v. RUSSELL.
• Decision Date: 22 April 1909
• Court: Supreme Court of Alabama

49 So. 327

160 Ala. 353

BROADUS ET AL. v. RUSSELL.

Supreme Court of Alabama

April 22, 1909

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by I. P. Russell against S. S. Broadus and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

See also, 39 So. 712.

Virgil Bouldin, for appellants.

W. F Esslinger and Bilbro & Moody, for appellee.

McCLELLAN J.

The insistence in behalf of counsel that this appeal should be dismissed because the transcript contains no organization of the court below is not sustained by reference to the record before us.

The transcript does contain the formal recital that "on the 26th day of February, 1906, at a regular term of the circuit court of Jackson county, state of Alabama, was begun and held at Scottsboro, the place of holding the same, when the following proceedings were had and done." That was a time and place provided by law for holding such court. The necessary inference is that the proper and essential officials in order to constitute a court were present and performed their functions in the premises. The cases of McPherson v. Wiggins (Ala.) 40 So. 961, and Mayhall v. Eddleman (Ala.) 41 So. 425, are not in point here, for the reason that the transcripts in those instances were entirely silent in respect of the organization of the court. The existence as well as the very general indulgence thereof by appellate tribunals of the presumption nothing expressly appearing to the contrary, that a court held at a legal time and place was properly organized, may be found asserted in Elliott's Appellate Procedure, § 714 and notes. Previous to the actual incorporation of the Broadus Cotton Mills the following instrument, self-explanatory, was executed: "Stevenson, Ala., April 10, 1901. I. P. Russell, Esq.: In your subscribing for one thousand ($1,000.00) dollars of stock in the cotton mill we are arranging for Stevenson, it is the understanding and agreement that you, in making said subscription, are to have your money back and said subscription canceled (if you shall so desire), if the mill enterprise does not within one year from its organization establish a tiling plant likewise. [ Signed] S. S. Broadus. P. B. Timberlake. J. F. Washington." Russell paid $200 on his subscription and was later sued by the Broadus Cotton Mills to recover the unpaid balance of $800. Among other pleas interposed by Russell was one asserting that the erection of the "tiling plant" mentioned in the instrument quoted--an instrument separate from the subscription list signed by Russell--had been abandoned by the company, and that, therefore, he was discharged from the payment of the unpaid subscription; and two other pleas, numbered 3 and 4, based on the breach stated, praying judgment by way of set-off and recoupment, respectively, for the $200 paid to the corporation on his subscription. From the judgment entry in that case it appears that these pleas of set-off and recoupment were stricken on demurrer, but in the agreed statement of facts filed in that action it was admitted that the averments of fact in those pleas, aside from two exceptions not now important to note, were true. The verdict, however, was in favor of the defendant on the "issues," and there were other issues besides those sought to be presented by pleas 3 and 4, and the judgment simply discharged the defendant and awarded him his costs. It hence appears that the issues attempted to be presented by pleas 3 and 4 were not litigated in that action, being eliminated by the sustaining of demurrers to them. And the correctness of this result finds justification in the decision of Russell v. Broadus Cotton Mills, infra. This judgment seems to now stand as rendered. Subsequently Russell brought suit against the Broadus Cotton Mills to recover the $200 paid. The defendant was given judgment below, and on appeal by Russell that judgment was affirmed. Russell v. Broadus Cotton Mills (Ala.) 39 So. 712. This court in affirming the judgment proceeded on the idea, and so held, that the obligation was not that of the corporation, but was that of the individuals signing it; and hence proof of the circumstances attending its execution and tending to show the capacity in which the paper was executed was inadmissible. Whether this ruling on the facts and circumstances present in that litigation was sound may be a matter of doubt, as will appear from these authorities: Moore Co. v. Towers Co., 87 Ala. 206, 211, 6 So. 41, 13 Am. St. Rep. 23; 1 Morawetz on Private Corp. (2d Ed.) § 549; Bridgport Co. v. Meader, 72 F. 115, 18 C. C. A. 451. But applying in the present case the ruling stated the result was, of course, to remit Russell to his action against the individuals for the recovery of the $200 paid and to the return of which he was clearly entitled for the...