Esslinger v. Spragins

• Decision Date: 16 June 1938
• Docket Number: 8 Div. 895.
• Citation: 236 Ala. 508,183 So. 401
• Parties: ESSLINGER v. SPRAGINS ET AL.
• Court: Alabama Supreme Court

183 So. 401

236 Ala. 508

ESSLINGER v. SPRAGINS ET AL.

8 Div. 895.

Supreme Court of Alabama

June 16, 1938

Rehearing Denied Oct. 6, 1938.

Appeal from Circuit Court, Madison County; E. H. Parsons, Special Judge.

Action on a note or bond by Francis Esslinger, as administrator with the will annexed of the estate of Virginia K. Hall, deceased against Robert L. Spragins, Marion B. Spragins, William E Spragins, and Susie S. Watts, as executors of the estate of Robert E. Spragins, deceased. From a judgment of nonsuit plaintiff appeals.

Affirmed.

Francis Esslinger, Brickell & Johnston, and Cooper & Cooper, all of Huntsville, and Roy L. Mitchell, of Tullahoma, Tenn., for appellant.

Watts & White, of Huntsville, and Rushton, Crenshaw & Rushton, of Montgomery, for appellees.

KNIGHT Justice.

The plaintiff, as administrator, with the will annexed, of the estate of Virginia K. Hall, deceased, brought the present suit against the defendants, as executors of the last will of Robert E. Spragins, and others, upon a promissory note or bond, executed on August 24th, 1923, by the Farmers Cotton Oil & Fertilizer Company, and payable in the sum of $35,000, on demand, to the order of Virginia K. Hall, at the First National Bank of Huntsville, Huntsville, Alabama.

To the complaint as originally filed, consisting of two counts, these appellees filed five pleas, the first being the general issue, the second and third setting up the statute of limitations of six and ten years, respectively. The fifth plea was non est factum, while in the fourth, the defendants pleaded the statute of non-claim.

The plaintiff, after filing of the above mentioned pleas by the present appellees, and after pleas by the other defendants were interposed, filed motion to have the cause transferred to the equity side of the court docket. The motion is quite lengthy, and it is unnecessary, in the view we take of the case, as here presented, to set out the motion, either in whole, or in part. It was based upon the theory of a trust relationship existing between the said Robert E. Spragins, deceased, and the said Virginia K. Hall, at the time of the execution of the note, and long prior thereto, and continuing down to the death of said Spragins, and upon the absence of knowledge on the part of Virginia K. Hall "as to the status of said trust, and of the matters in his (Spragins') hands, as her attorney; and the motion prayed for the equitable relief of discovery in the suit."

The court sustained the appellees' demurrers to this motion. To this action of the court, the judgment recites, the plaintiff excepted.

Thereafter the plaintiff amended the complaint by adding thereto additional counts, and by striking all parties defendant except these appellees. To the amended complaint the defendants refiled their pleas 1, 2, 3, 4 and 5, and filed additional pleas 6, 7, 8 and 9. Plaintiff's demurrers to pleas 4, 6 and 7 were overruled, and plaintiff filed replications to certain of the pleas, and joined issue on pleas 1, 5, 8 and 9. To the replications the said defendants demurred, and these demurrers were sustained by the court. At this juncture in the proceedings, the plaintiff refiled his motion to transfer the cause to the equity docket. The defendants thereupon refiled their demurrer to this refiled motion, and the court sustained this demurrer. The judgment entry then recites: "Comes now the plaintiff, by his attorney, and by leave of the court enters a non-suit in this cause; and the same being considered by the court, it is ordered and adjudged by the court that the defendant go hence without day and have and recover of the plaintiff the cost in this behalf expended, for which let execution issue. Plaintiff thereupon gives notice of appeal in open court and in the presence of the attorneys for the parties."

We are persuaded that the judgment entered by the court on plaintiff's motion for non-suit was final, and efficacious to bring before us for review the ruling of the court in overruling the several demurrers of the plaintiff to the different pleas of the defendant, as well as the ruling of the court in sustaining the demurrers of the defendants to the several replications of the plaintiff.

No doubt the court's action in overruling the plaintiff's demurrer to defendants' special pleas 4, 6 and 7 was fatal to any recovery by the plaintiff in the action, and especially was this true in view of the fact that the court had also sustained defendants' demurrers to plaintiff's replications to these pleas. It is fairly apparent from the record that the plaintiff became satisfied from these adverse rulings of the court that he could not recover, and, therefore, took a nonsuit to avoid a judgment against him. In these circumstances, the nonsuit suffered was sufficient to bring before us for review all the successive rulings adverse to the plaintiff, which culminated in and superinduced the taking of the non-suit. Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Russell v. Garrett, 208 Ala. 92, 93 So. 711; Garner v. Baker, 214 Ala. 385, 108 So. 38.

Section 6431 of the Code provides: "If, from any ruling or decision of the court on the trial of a cause, either upon pleadings, admission or rejection of evidence, or upon charges to the jury, it may become necessary for the plaintiff to suffer a non-suit, the facts, point, ruling or decision may be reserved for the decision of the appellate court by bill of exceptions or by appeal on the record as in other cases."

We think it fairly inferable from the record that the nonsuit resulted from the adverse rulings as to both pleas and replications, as well as the denial of the plaintiff's motion to transfer the cause to the equity docket. Therefore, the appeal upon the record, without bill of exceptions, confers jurisdiction upon this court to review the several rulings complained of, except the denial of the motion to transfer the cause to the equity docket. Berlin Machine Works v. Ewart Lumber Co., 184 Ala. 272, 63 So. 567; Garner v. Baker, supra; Long v. Holley, 157 Ala. 514, 47 So. 655.

The judgment entry discloses about a dozen rulings adverse to the plaintiff, nevertheless, there are 1,431 assignments of error, covering 105 pages of the transcript. This multiplication of assignments is not justified by the record and is disapproved. Counsel should remember that assignments of error are but the appellant's pleadings in this court. Kinnon, as Adm'r v. Louisville & Nashville R. Co., 187 Ala. 480, 65 So. 397; Redd Chemical & Nitrate Co. v. W. T. Clay Mercantile Co., 219 Ala. 478, 122 So. 652. Like other pleadings such assignments are subject to be stricken for needless prolixity.

We have uniformly held that an order refusing to transfer a cause from the law docket to the equity docket may not be assigned for error "on any sort of an appeal, and one which makes the transfer can only be assigned for error on appeal from a final decree." Holder v. Taylor, 233 Ala. 477, 172 So. 761, 762; Derzis v. Cox, 223 Ala. 517, 137 So. 306; Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843; Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916; Smith v. Grayson, 214 Ala. 197, 107 So. 448; Wiggins v. Stewart Bros., 215 Ala. 9, 109 So. 101; Code, Section 6490.

This settled construction placed upon Section 6490 of the Code precludes any review here of the propriety of the court's action in sustaining the defendants' demurrer to the motions made to transfer the cause to the equity docket.

However, we have held that in a proper case, the plaintiff may have the order denying the transfer reviewed by mandamus. Jones v. Wright et al., 220 Ala. 406, 125 So. 645; City of Eufaula v. Alabama Power Co., 233 Ala. 257, 171 So. 368; Ex parte Tennessee Valley Bank, 231 Ala. 545, 166 So. 1. But appellant has not pursued this remedy, and hence we cannot review the action of the court in denying plaintiff's motions to transfer the cause to the equity docket.

We are fully persuaded that the defendants' pleas 4, 6 and 7, interposing the statute of non-claim, were not subject to any ground of demurrer directed to them.

The suit against the defendants is upon a note or bond executed by the Farmers Cotton Oil & Fertilizer Company, and endorsed by Robert E. Spragins, deceased. Letters testamentary upon the estate of said decedent were issued to the defendants--appellees--on October 29, 1935.

Section 5815 of the Code, as amended by the Legislature at the Session of 1931, Acts 1931, p. 840, reads:

"All other claims to be presented or they are barred. All claims against the estate of a decedent, other than the claims referred to in the preceding section, whether due or to become due, must be presented within six months after the grant of letters testamentary or of administration; and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited. And such presentation must be made by filing a verified claim or verified statement thereof in the office of the judge of probate of the county in which the letters are granted, within six months from the granting of such letters. 'This Act shall become effective from and after January 1, 1932.' "

Section 5818 of the Code, as amended by the Legislature at the Session of 1931, Acts 1931, p. 837, reads:

"Presentation of claims; how made, affidavit.--The presentation must be made by filing a verified claim or a verified statement thereof, in the office of the Judge of Probate in which letters are granted, and the same must be docketed with a note of the date of such presentation; and, if required, a statement must be given by such Judge, showing the date of presentation. And every such claim or statement thereof so presented must be verified

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