Brown v. Bamberger

• Decision Date: 01 May 1896
• Citation: 110 Ala. 342,20 So. 114
• Parties: BROWN ET AL. v. BAMBERGER ET AL.
• Court: Alabama Supreme Court

20 So. 114

110 Ala. 342

BROWN ET AL. v. BAMBERGER ET AL.

Supreme Court of Alabama

May 1, 1896

Appeal from city court of Decatur; W. H. Simpson, Judge.

Action by Bamberger, Bloom & Co. against Edward J. Oden and Walter S. Brown, late partners as Oden & Brown, on three notes. Judgment for plaintiffs, and defendants appealed. The present appeal is prosecuted by defendant Brown, who obtained a severance in the supreme court. Reversed.

When the cause was called, on the 14th of June, 1893, the defendant Walter S. Brown, before going into trial, moved the court to quash the service of summons and complaint, so far as it related to him, on the grounds that no summons and complaint had been served upon him, that no such firm was in existence as the firm of Oden & Brown at the date of the commencement of the suit, and that there was no return by the sheriff going to show any service upon the defendant Brown. This motion had been filed at a previous term of the court and signed by counsel, "as attorney specially for Walter S. Brown." Walter S. Brown testified that he had seen pleas to be filed and had signed them at the last term of the court; that he was unable to get to court at that time, on account of sickness, and that said pleas had been prepared by his counsel, and he had signed them; that he knew of the pendency of the suit within a few days after it was brought and had consulted with attorneys about it, but at the time of the suit the said firm of Oden & Brown had been dissolved and no summons had been served upon him. A. L. Brown, the attorney for Walter S. Brown, testified that he was the attorney for both Oden and Brown, and that to the pleas sworn to by Oden the witness A. L. Brown added the words, "For Oden & Brown," and sent them to the clerk of the Decatur city court, in January, 1891, to be filed. The clerk of the court testified that he had received from A. L. Brown on January 21, 1891, the pleas which had been sent him, had filed said pleas on said day, and at A. L. Brown's request had marked his name for defendants on the docket. The docket showed that A. L. Brown had been marked as attorney for both the defendants generally, since January, 1891, and that the cause had been set down for trial as follows: June 6, 1891; January 8, 1892; June 10, 1892; January 5, 1893 June 13, 1893. It was shown that when the cause was called upon the sounding of the docket on June 13, 1893, E. W. Godbey, Esq., said to the court, "Enter my name for Brown," and that thereupon his name was entered, and that at the time of the trial, and since the last term of the court, a motion to quash the service was on file, signed by A. L. Brown and E. W. Godbey. The defendant Brown offered in evidence the return of the sheriff on the summons, as follows: "Executed this 27th day of December, 1890, by leaving a copy of the within summons and complaint with Oden & Brown, partners in business, defendant." This return was signed by a deputy sheriff. Upon the introduction of this evidence the court overruled the motion to quash the service, and to this ruling the defendant Brown duly excepted. Before announcing "Ready," and before going to trial, the defendant Brown moved to suppress the depositions of Fred. Kneffler and Joseph Cohen, taken for plaintiff at the same time before Charles A. Grayham, commissioner, on the grounds "that the title of the cause and of the court in which the depositions were taken were not indorsed on the envelope containing them, that the commissioner failed to write his name across the seal of the said envelope containing them, and that defendant Brown had no notice of their filing, nor of the name and residence of either witnesses or commissioner." Upon the hearing of this motion the envelope in which the depositions came was introduced in evidence, and there appeared thereon the following indorsement by the commissioner: "Oden & Brown. Depositions of Fred. Kneffler and Joseph Cohen for plaintiff." This was across the end of the envelope, and immediately beyond where the portion of it had been torn off in opening. The depositions appeared in all respects regular, and not to have been tampered with, and were duly certified according to law. The interrogatories were marked "Filed May 15, 1891." The sheriff's return thereon was as follows: "Executed by handing a copy of the within to A. L. Brown, attorney for Oden & Brown, this the 16th day of May, 1891." Signed by the sheriff, by his deputy sheriff. Upon this evidence the court overruled the motion to suppress the depositions, and to this ruling the defendant Brown duly excepted. The defendant Brown then moved the court to require the plaintiffs to give security for costs, and offered to show that said plaintiffs were nonresidents of the state of Alabama. The court refused to entertain the motion, holding that it came too late, and to this action of the court the defendant Brown duly excepted. Upon the cross-examination of Oden as a witness, he was asked the following question: "Are you friendly with Brown?" The witness answered that he was not. He was then asked by Brown: "If it was not a fact that he (Brown) had, at the last term of the Morgan county circuit court, recovered against the witness a judgment for $500 damages for deceit?" The court sustained an objection to this question, and the defendant duly excepted to such ruling. The defendant Brown then offered to prove by the minutes of the circuit court that such judgment had been rendered against said Oden in an action of deceit, but the court refused to receive this evidence, upon objection of the plaintiff, and to this ruling the defendant Brown duly excepted. The said witness Oden was also asked by the witness Brown, on cross-examination, the following question: "If he was not insolvent and execution-proof as to judgment with waiver of exemptions?" The plaintiff objected to this question, the court sustained the objection, and the defendant Brown duly excepted. The testimony of this witness was that he executed the notes at the request of his co-partner, W. S. Brown, and in his presence, and that he then handed the notes back to Brown to be returned to the plaintiffs. On cross-examination he further testified that Brown brought the notes to him at his office in Hartselle late one afternoon, and said that he wanted to consult with the witness before signing them, and wanted to know if it was all right to give notes for that amount, stating at the time that the attorneys of the plaintiffs were threatening to sue him if he did not give the notes, and that at that consultation the plaintiff executed the notes at the instance of Brown. The witness further testified that Oden & Brown had not formally dissolved partnership, and that he had given no notice of the dissolution, by publication or otherwise, to the plaintiffs; that the amount of the notes was the correct amount due by Oden & Brown. W. S. Brown, as a witness in his own behalf, testified that Oden & Brown were indebted to the plaintiffs in the amount of the notes sued on, less the payments which had been made thereon since their execution; that he knew nothing of any notes having been given, until the plaintiffs began to demand payment; that he did not recollect to have seen the notes sued on until after suit was commenced, and that he did not authorize Oden & Brown, or any one else, to execute them in the firm's name, or in his name, in any manner; that he did not carry the said notes to Oden, nor request him to execute them; that he never signed any written waiver of his exemptions as against the debt evidenced by said notes, and had never ratified any such waiver, in writing or otherwise, nor signed any paper evidencing his intention to waive exemptions. Brown further testified that after the execution of the notes he had paid the attorneys of the plaintiffs something on them. The other facts of the case are sufficiently stated in the opinion. In his argument before the jury the counsel for the defendant Brown commented at great length upon the inconsistencies in Oden's testimony, and drew unfavorable inferences from the manner in which the witness Oden testified while on the stand. It is unnecessary to set these remarks out in detail. The court interrupted the counsel in making such remarks, and told the jury that they must not consider what the counsel had said in this respect. To this ruling the defendant duly excepted. There were many charges asked by the defendant Brown, to the refusal to give each of which the defendant separately excepted. There were verdict and judgment for the plaintiffs, and the defendants appeal. In this court the defendant Walter S. Brown prayed for and obtained a summons and severance as to E. J. Oden, and the present appeal is now presented in the name of W. S. Brown, who assigns as error the several rulings of the trial court to which exceptions were reserved.

A. L. Brown and E. W. Godbey, for appellant.

Lane & White, for appellees.

McCLELLAN J.

This is an action by Bamberger, Bloom & Co. against "Edward J Oden and Walter S. Brown, late partners under the firm name of Oden & Brown," on three promissory notes alleged to have been made by the defendants on August 21, 1890, each for $186.35, payable severally 30, 60, and 90 days after date; and the complaint avers that all said notes bore interest at the rate of 8 per cent. per annum from the date of their execution. It is also alleged that each of said notes contains a stipulation to pay a reasonable attorney's fee for collection thereof if not paid at maturity, and that such fee is 10 per cent. on the amount of said notes. And there is a further averment that "in and by said notes the defendants waived their right of exemption to personal property under the laws and constitution...