City of Birmingham v. Simmons, 6 Div. 592.

• Decision Date: 30 October 1930
• Docket Number: 6 Div. 592.
• Parties: CITY OF BIRMINGHAM v. SIMMONS.
• Court: Alabama Supreme Court

130 So. 896

222 Ala. 111

CITY OF BIRMINGHAM v. SIMMONS.

6 Div. 592.

Supreme Court of Alabama

October 30, 1930

Rehearing Denied Nov. 28, 1930.

Appeal from Circuit Court, Jefferson County; White E. Gibson Special Judge.

Acting for damages for personal injuries by Harry Ross Simmons, a minor, suing by his next friend, R. C. Simmons, against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Affirmed.

Wilkinson & Burton and Hollis O. Black, all of Birmingham, for appellant.

Robt. J. Wheeler and Marvin Woodall, both of Birmingham, for appellee.

SAYRE J.

Plaintiff was awarded damages alleged to have been caused by a defective bridge in one of defendant's streets. Defendant appeals.

Appellant lays stress upon an assignment of error which brings under review that ruling of the trial court admitting in evidence the sworn claim filed with the clerk of the city commission stating the manner in which plaintiff's injury was received, etc., in an effort to comply with section 2031 of the Code 1923. The objection taken against the notice is that the supporting affidavit was taken before Robert J. Wheeler who at the time was under employment by plaintiff to prosecute this suit for a fee made contingent upon recovery and the written contract to that effect was put in evidence. Appellant cites more than a hundred adjudicated cases, English and American, in support of his proposition that Wheeler, who by his contract had acquired a pecuniary interest in plaintiff's claim against the city, was thereby disqualified to take plaintiff's oath, with result that the notice of plaintiff's injury could not be held effective as the notice required by the statute. Stated in general terms, appellant's proposition is that a notary cannot certify to or act in a matter in which he has a personal interest. 46 Corpus Juris, 518, § 30. Wheeler's interest in the claim against the city was that he had been retained by plaintiff to prosecute his claim against the city, agreeing "to give said attorney for his services a sum equal to one-half of all sums received or recovered."

The statute, Code 1923, § 2031, forbids a recovery in cases of this sort "unless a sworn statement be filed with the clerk" of the municipal government. In 43 Corpus Juris, 1204, § 1972, it is said that the fact that the notary taking the oath also acted as attorney for plaintiff in the action for injuries does not vitiate the claim, citing Allen v. West Bay City, 140 Mich. 111, 103 N.W. 514, which case is reported with editorial note in 6 Ann. Cas. 35, where it is said that, "It has long been a court rule in England that an affidavit made before an attorney for the party taking the oath cannot be heard," citing the English cases. Cases from Arkansas, Colorado, New Jersey, New York, and Canada to the same effect are noted. Per contra cases from the federal circuit court (Atkinson v. Glenn, 4 Cranch, C. C. 134, Fed. Cas. No. 610), California, Illinois, Indiana, Massachusetts, Minnesota, Missouri, New Mexico, and Texas are cited in the note. Of the English rule, which appears to have been followed in the cases supporting the rule of exclusion, the court in Richardson v. Sheehan, 46 Ill.App. 531, observed: "The practice excluding them [affidavits sworn before attorneys of the parties using them], is, in England, founded upon rules of court not in force here (Tidd's Practice, 494)." And in People v. Spalding, 2 Paige (N. Y.) 329, the chancellor says the rule referred to is a mere technical rule, and the decision there was that a failure to observe it would not vitiate a proceeding in which no injury thereby resulted to one of the parties. By this reference we do not intend to deny that the statute of this state is mandatory ( Brannon v. Birmingham, 177 Ala. 419, 59 So. 63), but only to indicate that it intends no narrow construction ( McDougall v. Birmingham, 219 Ala. 686, 123 So. 83, 63 A. L. R. 1076, and cases there cited).

Our cases remain to be noticed.

In Huntsville v. Phillips, 191 Ala. 527, 67 So. 664, the court held an affidavit sufficient which was made by the mother of the plaintiff, as next friend, plaintiff being a minor of tender years.

In principle the decision in Vizard v. Robinson, 181 Ala. 349, 61 So. 959, 961, concludes the question here raised. In that case the attorney who took the acknowledgment of a conveyance to his client was acting under a contract by which he was to receive a certain sum per acre for all timber bought by him for his client. The ruling was that the attorney was not disqualified to take and certify the acknowledgment-this for the reason that he had not a "financial interest in the conveyance." The reasoning of the opinion is found in the following language "The facts set forth evidencing at most a financial interest in the transaction, not in the conveyance. That the agent's or attorney's compensation, as well as its amount, was made to depend entirely upon the effectuation by him of the sale only sufficed to render his financial interest therein secondary and incidental." That...