City of Montgomery v. Wyche

• Decision Date: 24 November 1910
• Citation: 53 So. 786,169 Ala. 181
• Parties: CITY OF MONTGOMERY v. WYCHE.
• Court: Alabama Supreme Court

53 So. 786

169 Ala. 181

CITY OF MONTGOMERY v. WYCHE.

Supreme Court of Alabama

November 24, 1910

Rehearing Denied Dec. 22, 1910.

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Action by W. S. Wyche against the City of Montgomery. From a judgment for plaintiff, defendant appeals. Affirmed.

C. P McIntyre, for appellant.

Coleman Dent & Weil, for appellee.

SAYRE J.

Judgment was entered in this cause on January 22, 1910. Thereafter, on April 14, the bill of exceptions was presented to the presiding judge, and the same was signed on May 7th agreeably to section 3019 of the Code of 1907. Section 9 of the act prescribing rules of practice and procedure in the circuit court of Montgomery county, passed at the regular session of 1907, and approved July 29, 1907 (Loc. Laws 1907, p. 548), provided that all bills of exceptions relating to the trial of causes must be signed within 30 days after the day on which the issue, or issues, of fact to which the bill relates was tried, unless an extension of time be had by agreement of parties or an order of the judge. The fact that the bill of exceptions in the cause was signed after the lapse of the time provided by the local act is made the basis of a motion to strike the bill.

The Code of 1907 was adopted by the act approved July 27, 1907 (Gen. Laws 1907, p. 499), and became operative on May 1, 1908. Section 3019 of this Code requires that bills of exceptions be presented within 90 days from the day on which judgment is entered, and not afterwards, and must be signed by the judge within 90 days after presentation. It also provides that all general, local, or special laws or rules of court in conflict with the section are repealed, abrogated, and annulled. Section 2 of the act adopting the Code contained this provision: "No act passed on or after the ninth day of July, 1907, shall be repealed or affected in any manner by the adoption of this Code. A reading of these several statutes makes it clear enough that, as for anything to be found in them, the local act in reference to rules of practice and procedure in the circuit court of Montgomery must have controlled the signing of the bill in this cause." But on August 26, 1909, at a special session of the Legislature, an act (Acts 1909, p. 174) was passed as follows:

"Section 1. That the three printed volumes published by authority of law in 1907, known as the Political, Civil, and Criminal Codes, containing sections 1 to 7900, both inclusive, together with the rules of practice of courts, be and the same are hereby adopted as the Code of Alabama.

"Sec. 2. That all acts of the Legislature, passed at the special sessions of the Legislature, altering, amending or repealing either the sections of the Code, or the acts of the Legislature passed at the general or special sessions are unaffected by the adoption of this Code."

This act is to be accounted for in this way. The act of July 27, 1907, adopted as the Code the manuscript which had been prepared by the commissioner, as revised, amended, and corrected by the joint committee of the two houses of the Legislature. Section 3 provided that all acts of the then present session of the Legislature of a general nature, enacted on or after July 9, 1907, should be incorporated in the Code at appropriate places, so that every statute of a general nature, in force at the time of the publication of the Code, should be incorporated therein. Accordingly, a considerable number of enactments passed at the regular and a later intervening special session, some in the shape of amendments of sections of the Code, others in the shape of independent legislation, found places in the printed Code. But these enactments acquired no sanction by their presence in the Code, and question arose in respect to a number of them whether they had been passed in the manner required by the Constitution. Meantime also at special called sessions of the Legislature a number of the acts thus printed in the Code had been amended, and other general legislation enacted on subjects not treated by the Code or previous statutes. Thereupon was passed the act of August 26, 1909, which we have quoted. This last act of adoption enacted, as of its date, the Code as it had then been printed and as it now is, including section 3019, with its provision repealing all general, local, and special laws in conflict therewith. But in the same way section 10 was adopted a second time also. This section provides that "local, private, or special statutes * * * and those relating to the jurisdiction and practice of courts in any division, circuit, county, or other territory less than the entire state, are not repealed by this Code." This section, though dealing with the somewhat restricted subject of local laws and practice acts, deals with them as a whole, and not with their separable provisions, whereas section 3019 still further narrows the subject by dealing only with local laws and practice acts or so much of them as affects the time of presenting bills of exceptions. Generalibus specialia derogant. Both sections are given a field of operation, a sound rule of statutory construction is observed, and the legislative purpose is accomplished, by holding that the act of August 26, 1909, left the practice act intact except as to its provision concerning the time for presenting bills of exceptions. That provision it repeals. There is nothing in the second section of the act of August 26, 1909, to affect this conclusion. The history of the second act of adoption and the fact that general legislation, affecting neither the Code nor intervening statutes previously enacted at the called sessions, was not in the Code, when considered in connection with that clause of section 10 of the Code which, subject to certain provisions touching the swamp and overflowed lands, the public debt, and institutions of learning, repeals all statutes of a public, general and permanent nature not included in the Code--these facts would indicate the necessity for some special saving of the intervening general legislation enacted at the special sessions, and suggest persuasively that the second section of the act adopting the Code the second time was written to meet that necessity--to save general acts of the special sessions from the influence of that part of section 10 which repeals general laws not included in the Code. There is no occasion just now to say whether the purpose was not to save general intervening legislation of every character. It suffices to say that the practice act in question is local in its operation, and there was no need for a second saving clause as to it. It was expressly--except with the proviso we have noted--saved by that part of section 10 which deals with local laws. The motion to strike must therefore be overruled.

All the counts aver in substance that defendant negligently permitted the street to remain out of repair and in a dangerous condition. The demurrer was that the municipal authorities were not alleged to have known of the defect. The demurrer was well overruled. Lord v. Mobile, 113 Ala. 360, 21 So. 366, and authorities cited; Ensley v. Smith, 51 So. 343.

In advance of the trial defendant had filed special pleas 2 and 3, to which demurrers were sustained. To state the substance of the second plea briefly, it averred plaintiff's acquaintance with the alleged defect in the street, viz., an open ditch along by its side; that he stopped the horse he was driving shortly before he reached a railroad crossing that in the attempt to release one of the lines, which had gotten under the horse's tail, plaintiff caused the horse to back the buggy in which he was into the ditch, thereby causing his own injury. The demurrer to this plea was well sustained. The conclusion of negligence by no means follows upon the facts alleged. They are all consistent with the exercise of due care on the part of the plaintiff. But plea 3 goes further. It alleges that in the attempt to get the line from under the horse's tail plaintiff negligently caused the horse to back the buggy into the ditch. The only possible objection to this plea is that the use of the word "negligently" involved the statement of a conclusion. The office of a plea is to state the proposed defense in a way to give plaintiff notice of the evidence which will be adduced in support of it. It is never necessary to state the evidence itself. No mere conclusion will suffice, but, where the general facts are stated, the word "negligently" is not without appropriate and effective uses. St. Louis & San...