Carroll v. Warren

• Decision Date: 21 July 1904
• Parties: CARROLL v. WARREN. [a1]
• Court: Alabama Supreme Court

37 So. 687

142 Ala. 397

CARROLL v. WARREN. ^[a1]

Supreme Court of Alabama

July 21, 1904

Appeal from Circuit Court, Pike County; John P. Hubbard, Judge.

Action by J. S. Carroll against J. M. Warren. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Foster Samford & Carroll, for appellant.

S. M Dinkins, for appellee.

SHARPE J.

The motion to strike the bill of exceptions cannot prevail. The bill of exceptions was filed in the circuit court September 14, 1900. It purports to have been signed in September, 1900 the day of signature not being specified. It contains an affirmation of the judge to the effect that the same was signed within the time allowed by the court, and an order of court had allowed for the signing 30 days, without specifying when that period should begin or end. The effect of this order was to extend the time for signing 30 days from the final adjournment of the term. Morningstar v. Stratton, 121 Ala. 437, 25 So. 573. When that adjournment occurred does not appear, but under the statute the court could have continued to a time within the 30 days next before September; hence the affirmation referred to is consistent with the record, and is taken as true. Tarver v. State, 137 Ala. 29, 34 So. 627.

Plaintiff sues as a transferee of a promissory note which in the complaint is averred to have been made by defendant, payable to the order of W. T. Magee & Co. at the People's Bank of Troy, Ala. The pleas are the general issue, non est factum, and two other pleas, each averring a failure of consideration. To the plea of non est factum plaintiff filed a special replication averring that the plea was based on an alleged alteration of the note, and further averring matter to show he (the plaintiff) had made no material alteration, and that he held the same as a bona fide purchaser for value. To the two pleas setting up failure of consideration there were interposed the general issue and a special replication, which went also to the plea of non est factum, averring "that the note sued upon was executed in Alabama, payable at the People's Bank in Troy, Alabama, in money, at a fixed time, and was purchased by the plaintiff before maturity, in the usual course of business, for a valuable consideration, without notice of any defect or infirmity in the note, or any defense thereto as set out in said pleas."

There are assignments of error based upon the admission of testimony, which, with reference to a note in evidence, was given by defendant, to effect that "the note had been changed since he signed and delivered it by adding the words 'The People's Bank, Troy, Alabama,' after the printed words 'value received at,' and by affixing thereto revenue stamps and...