Catts v. Phillips

• Decision Date: 10 May 1928
• Docket Number: 6 Div. 936
• Citation: 217 Ala. 488,117 So. 34
• Parties: CATTS v. PHILLIPS.
• Court: Alabama Supreme Court

117 So. 34

217 Ala. 488

CATTS v. PHILLIPS.

6 Div. 936

Supreme Court of Alabama

May 10, 1928

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action by S.W. Catts against E.J. Phillips. Judgment for defendant and plaintiff appeals. Reversed and remanded.

James J. Ray and R.A. Cooner, both of Jasper, and Rushton, Crenshaw & Rushton, of Montgomery, for appellant.

L.D Gray, of Jasper, for appellee.

BROWN J.

One phase of the present controversy was presented on a former appeal. Phillips v. Catts, 206 Ala. 594, 91 So. 579. After the remandment of the case on that appeal, the case was transferred to the law docket, and the plaintiff, appellant here, filed a complaint containing counts for breach of contract and the common counts to recover the amount alleged to have accrued under the contract prior to the filing of the original bill.

And on the 23d day of February, 1922, the appellant filed another suit of like character, claiming damages for the breach of the same contract, joining therein the common counts, on account stated, and for money had and received. These cases were, by order of the court, consolidated and tried as one case. The pleas were the general issue, the statute of limitations of three and six years, fraud in the procurement of the contract, and that the coal for which royalties are claimed was not mined on defendant's property, with joinder of issue on all pleas and special replications to pleas 4 and 6.

At the conclusion of the evidence, the court, at the instance of the defendant, directed a verdict through the affirmative charge in writing requested by the defendant, and from the judgment on the verdict of the jury the plaintiff prosecuted this appeal.

The contract, which is pleaded as the foundation of the plaintiff's cause of action in the special counts, and as clearly appears from the record, upon which he relied for recovery under the common counts, as well, to state it in the language of appellant's supplemental brief, "is set out several times in the record in this case, but it does not appear in the bill of exceptions because of the fact that while the bill states that this Exhibit B was introduced in evidence, and while the witnesses, Catts, Phillips, Dilworth, and Wood, and perhaps others, were examined at length about it, and some of the witnesses read it, yet, by oversight, it was not copied in the bill of exceptions."

As set out in the record here the contract appears as pleaded, not as evidence, and the recital in the bill of exceptions is that "thereupon the plaintiff offered in evidence the contract marked Exhibit B." The appellant's contention now is that on the authority of Hines v. Miniard, 208 Ala. 176, 94 So. 302; W.U. Tel. Co. v. L. & N.R. Co., 199 Ala. 441, 74 So. 946; N.C. & St. L.R. Co. v. Crosby, 194 Ala. 350, 70 So. 7, and Crowson v. Cody, 215 Ala. 150, 110 So. 46; holding that this court will take judicial knowledge of its records, we may look to the record on the former appeal to ascertain the contents of the contract designated in the bill of exceptions as Exhibit B, for the purpose of reviewing the ruling of the trial court involved in giving the affirmative charge for the defendant.

The cases cited are to the general effect that, when the matter is called to the attention of the court in argument or the pleading in the case under consideration, the court will take judicial notice of its records on the former appeal of the same case, or in another case pending on appeal here between the same parties and involving the same subject-matter, to ascertain the issues of law and fact there involved, and the result, and the influence of such adjudication on the questions presented in the appeal under consideration. See, also, Ala. City G. & A.R. Co. v. Bates, 155 Ala. 347, 46 So. 776; Cogburn v. Callier, 213 Ala. 38, 104 So. 328.

However, the rulings in those cases do not authorize or justify this court to look to the record on the former appeal to supply omission in the bill of exceptions or ascertain the contents of the writing not set out therein. The bill of exceptions does not identify the contract with Exhibit B offered in evidence in the trial of the case on the equity side so as to justify its inclusion in the bill of exceptions by the transcribing officer in preparing the transcript. Parsons v. Woodward, 73 Ala. 348; Kyle v. Gadsden L. & I. Co., 96 Ala. 376, 11 So. 478; Moore v. Helms, 77 Ala. 380. And for this court, on its own initiative, to undertake to supply the omission of the contract from the bill of exceptions by searching the record of the case on former appeal, would be to disregard many of our decisions, in respect to such questions, as well as the rules of practice prescribing the form and contents of bills of exceptions in actions at law, and would result in setting a precedent fraught with such uncertainties as would inevitably lead, not only to embarrassing mistakes, but possibly to irremediable errors--consequences too dangerous to ignore. See rule 32, Circuit Court Practice, Code of 1923 (vol. 4), p. 905; Lamar v. King, 168 Ala. 285, 53 So. 279; Clardy v. Walker, 132 Ala. 264, 31 So. 78; Sanders v. Steen, 128 Ala. 633, 29 So. 586; Fleming v. Ussery, 30 Ala. 282; Mooneyham v. Herring, 210 Ala. 168, 97 So. 638; American Nat. Ins. Co. v. Moss, 215 Ala. 542, 112 So. 110.

While these authorities preclude consideration of the assignments of error based upon the giving of the affirmative charge, that is not to say that it was given without error, but in the light of the presumption indulged, the appellant has failed to properly present the question. Clardy v. Walker, 132 Ala. 264, 31 So. 78; Sanders v. Steen, 128 Ala. 633, 29 So. 586.

Though a claim may arise out of a special contract, if the contract has been fully performed by the plaintiff, and nothing remains to be done by the defendant but the payment of the amount stipulated, the plaintiff may recover under the common counts. Jos. Joseph & Bros. Co. v. Hoffman &amp McNeill, 173 Ala. 568, 26 So. 216, 38 L.R.A. (N.S.) 924, Ann.Cas.1914A, 718; Holloway v. Talbot, 70 Ala. 389; Maas & Schwarz v. Montgomery Iron Works, 88 Ala. 328, 6 So. 701. Therefore, assuming that the plaintiff, by setting out the lease between Phillips and Dilworth, in haec verba, in the special counts, assumed the burden of proving the lease as pleaded (Pharr & Beck v. Bachelor, 3 Ala. 244; Gilmer v. Wallace, 75 Ala. 220; Southern Ry. Co. v. Lee, 167 Ala. 268, 52 So. 648), yet this burden did not extend to the common counts. As to these counts the existence and terms of the lease between Phillips and Dilworth were merely collateral to the main issue, and it was permissible to show the existence of the lease and the royalties to be paid by the lessee by parol testimony. Stearnes et al. v. Edmonds, ...