Bush v. Bumgardner

Citation102 So. 629,212 Ala. 456
Decision Date15 January 1925
Docket Number6 Div. 275
PartiesBUSH v. BUMGARDNER.
CourtSupreme Court of Alabama

Rehearing Denied Jan. 28, 1925

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Motion by W.D. Bush for summary judgment against George H Bumgardner. Judgment for defendant, and plaintiff appeals. Affirmed.

Pinkney Scott, of Bessemer, for appellant.

Huey &amp Welch, of Bessemer, for appellee.

GARDNER J.

This is a summary proceeding by appellant against appellee for judgment for money recovered by appellee as an attorney at law. Sections 10267, 10268, Code 1923. The cause was originally filed in the name of appellant and one E.D Thomas. During the progress of the cause, however, there was an amendment to the motion, striking E.D. Thomas as a party, and the cause proceeded in the name of appellant alone against the appellee. The issues presented by the pleading were submitted for the consideration of the jury, resulting in a verdict in favor of the defendant, from which the movant has prosecuted this appeal.

The defendant, in addition to the general issue, interposed the plea of set-off, and there was also judgment in his favor on this plea.

It is insisted that a plea of set-off was not available to the defendant in this action. Such was the former holding of this court, as found in Macdonald v. State, 143 Ala. 101, 39 So. 257. However, in White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A. (N.S.) 568, the Macdonald Case was overruled, and it was held that in proceedings of this character every defense is open to the attorney which would be open to him in the equitable action of assumpsit against him. Under this authority, therefore, the plea of set-off was available to the defendant.

Plea 5 in effect sets up payment and satisfaction, and, indeed, in proceedings of this character, would doubtless have been available under the general issue.

Whether under the strict rule of pleading the plea of set-off (plea No. 4) was entirely free from defect need not be considered, as it is well established by our decisions that in proceedings of this character technical precision and accuracy in pleading is not required. As said in Walker v. Chapman, 22 Ala. 116, the object of such statutory proceeding "was in some measure to divest the proceedings of the forms and technicalities which incumber the common-law action, and to substitute in its place a less formal, as well as more expeditious remedy." See, also, Timberlake v. Brewer, 59 Ala. 108; Lyon v. State Bank, 1 Stew. 442; Higdon v. Fields, 6 Ala.App. 281, 60 So. 594; 37 Cyc. 530. There was no error in overruling demurrers to pleas 4 and 5.

Appellee as an attorney was given for collection two mortgages against one King. One of these mortgages was the property of W.D. Bush, the appellant, while the other was the joint property of W.D. Bush and E.D. Thomas. As very clearly appears from the proof, the first mortgage to W.D. Bush alone was satisfied by the said Bush taking over the property therein embraced at a time when the parties had what is referred to as a partial settlement, in August, 1921. In this partial settlement, which was reduced to writing and subscribed by all three of the parties, the balance due upon the mortgage jointly owned by Bush and Thomas is stated, as well as the agreement on the part of the mortgagor to make a cash payment of $100 and another payment of $100 the next succeeding month.

It is very evident that the payments upon this mortgage made to Bush and Thomas constitute appellant's complaint. Defendant testified as to various amounts collected by him, and which he either paid directly to the appellant or deposited to his credit in the bank. A detailed discussion of the evidence and a review of these payments, with the amount thereof, would serve no useful purpose. It further appears from the evidence that E.D. Thomas had been for a number of years a client of the defendant, for whom defendant had rendered considerable legal services, an enumeration of which is unnecessary. The defendant testified that during the progress of these collections, he informed appellant that Thomas was largely indebted for services rendered, as well as personal expenses incurred, and that when he had received his share of the proceeds of this mortgage, jointly owned by appellant and Thomas, he (defendant) was permitted to retain other collections as payment on the indebtedness due by Thomas, and that appellant and Thomas agreed to this. Defendant's evidence further tends to show that he had paid to appellant a sum largely in excess of his one-half interest in this mortgage owned jointly by himself and Thomas, and that the remainder of the collections were no more than sufficient to satisfy his demand against Thomas.

E.D. Thomas had in the meantime died, and his widow was appointed executrix. Appellant purchased from the executrix the interest of Thomas in this mortgage. E.D. Thomas was not a party to this cause, nor was his estate interested in the result thereof. We are therefore of the opinion that the defendant was not disqualified from testifying in regard to this transaction by virtue of any provision of section 7721, Code 1923. Phillips v. Morris, 169 Ala. 460, 53 So. 1001; Morris v. Birmingham Nat. Bank, 93 Ala. 511, 9 So. 606.

In order to show that the remainder of the collection of this mortgage was properly applied in payment of the indebtedness of Thomas to the defendant, the defendant was properly permitted to show the legal services rendered, and prove by competent witnesses the reasonable value thereof. If the defendant's version of this transaction is to be accepted, very clearly the jury were authorized to find that he was due nothing to the movant on account of these transactions.

The defendant also offered proof of the legal services rendered to the appellant, for which he had received no compensation together with evidence of the reasonable value thereof. The amount proven for these services was sufficient upon which the jury might base...

To continue reading

Request your trial
19 cases
  • Copeland v. Warren
    • United States
    • Alabama Supreme Court
    • January 14, 1926
    ... ... relation whatsoever to the party against whom such testimony ... is sought to be introduced." Code 1923, § 7721; Moore v ... Moore, supra; Bush v. Bumgardner, 212 Ala. 456, 102 ... So. 629; Phillips v. Morris, 169 Ala. 460, 53 So ... 1001; Morris v. Bank, 93 Ala. 511, 9 So. 606 ... ...
  • Tennessee-Hermitage Nat. Bank v. Hagan
    • United States
    • Alabama Supreme Court
    • November 22, 1928
    ...to evidence treated in bulk in Wells Co. v. Lane, 217 Ala. 10, 115 So. 77; Malone v. Reynolds, 213 Ala. 681, 105 So. 891; Bush v. Bumgardner, 212 Ala. 456, 102 So. 629. that the matters inquired about bore a general relation to the questions for consideration, yet there were three classes o......
  • Morgan-Hill Paving Co. v. Thomas
    • United States
    • Alabama Supreme Court
    • March 26, 1931
    ...either charge. City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337; Alabama Co. v. Norwood, 211 Ala. 385, 100 So. 479; Bush v. Bumgardner, 212 Ala. 456, 102 So. 629; Malone v. Reynolds, 213 Ala. 681, 105 So. Southern Railway Co. v. Cunningham, 152 Ala. 147, 44 So. 658. The case went to the......
  • Moseley v. Alabama Power Co.
    • United States
    • Alabama Supreme Court
    • March 1, 1945
    ... ... error is made to appear. City of Montgomery v. Moon, ... 208 Ala. 472, 94 So. 337; Wells Co. v. Lane, 217 ... Ala. 10, 115 So. 77; Bush v. Bumgardner, 212 Ala ... 456, 102 So. 629; Sovereign Camp, W. O. W. v. Davis, ... 242 Ala. 235, 5 So.2d 480 ... But it ... is ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT