Freeman v. Blount

• Decision Date: 17 February 1911
• Citation: 55 So. 293,172 Ala. 655
• Parties: FREEMAN v. BLOUNT ET AL.
• Court: Alabama Supreme Court

55 So. 293

172 Ala. 655

FREEMAN v. BLOUNT ET AL.

Supreme Court of Alabama

February 17, 1911

Rehearing Denied April 27, 1911.

Appeal from City Court of Gadsden; John H. Disque, Judge.

Bill by F. B. Freeman, as executor, against Mrs. Lily T. Blount and others, to cancel a deed. From a decree dismissing the bill complainant appeals. Affirmed.

Simpson Mayfield, and Somerville, JJ., dissenting.

Knox Acker, Dixon & Blackmon, for appellant.

Dortch, Martin & Allen and W. G. Boykin, for appellees.

McCLELLAN J.

The report of the former appeal in this case will be found in 158 Ala. 242, 48 So. 581, 21 L. R. A. (N. S.) 755, under the style of Blount v. Blount.

The theory of the bill is that a deed purporting to be executed by J. G. Blount to J. A. Blount (who died before the bill was filed), recorded in the office of the judge of probate of Etowah county, was never executed by J. G. Blount--was a forgery--and the prayer is that the original instrument be canceled, if to be found, and that the record thereof be expunged.

On the former appeal it was ruled by a divided bench, reversing the ruling of the city court, that the complainant (grantor) was competent to testify that he did not execute the instrument, notwithstanding the grantee therein had died. Upon the second hearing in the city court, the ruling here made was followed, and the testimony of the complainant, denying the execution of the instrument, was received and considered by the court, notwithstanding the respondents' insistence properly pointed out, under Code 1907, § 4007 (Code 1896, § 1794), that the previous death of the grantee closed the lips of the surviving grantor (complainant) to testify in the premises. However, with this testimony admitted and before it, the city court reached the conclusion that the complaining grantor had not successfully carried the burden of proof resting on him to establish that the instrument was never executed by him, and so dismissed his bill. It is from this decree the present appeal is prosecuted.

The solicitors for appellees reargue the question formerly passed upon by this court, viz., that their exceptions to the competency of J. G. Blount to testify in denial of the execution of the instrument should have been sustained, and not overruled, under the provisions of the statute before cited.

In answer to this insistence of appellees' solicitors, the solicitors for the appellant take the point that the appeal is on behalf of the complainant alone, and that there is no cross-assignment of errors by appellees, invoking a review here of the asserted, by appellees, erroneous ruling of the city court, on the last hearing, whereby J. G. Blount was allowed to testify in denial of the execution of the instrument assailed.

A party litigant in whose unqualified favor the decree concludes, and who can take no manner of benefit from a reversal or modification of the decree, cannot appeal therefrom. 2 Ency. Pl. & Pr. p. 157; 2 Cyc. pp. 632-633; Dupree v. Perry, 18 Ala. 34, 37; Green v. Blackwell, 32 N. J. Eq. 768; Hill v. Hill, 6 Ala. 166; Scholze v. Steiner, 100 Ala. 148, 14 So. 552.

In Green v. Blackwell, supra, it was said, by way of approving quotation: "Without defining or attempting to classify the orders of the chancery court which may or may not be appealed from, it is certain there can be no appeal from an order by which a party is not aggrieved. The very object of the appeal is to redress injury. If there be no injury to redress, there can be no appeal; the object of the appeal cannot be attained; it cannot be what it is intended--a redress for an injury."

Having no cause of complaint whatsoever, a party so completely favored by the decree cannot assign errors.

The sole office of an assignment of errors, in appellate procedure, is to invite a review of rulings wherefrom, if sustained, the judgment or decree is changed, modified, or reversed.

There can be no such thing as cross-assigning error to affirm a decree or judgment. 2 Ency. Pl. & Pr. p. 921; 1 Words and Phrases, pp. 576, 577. It therefore results that the right of appellees to invoke, in brief alone, review by this court on appeal of asserted (by appellees) erroneous rulings in the reception or rejection of evidence, cannot be determined by the fact that such rulings are not assigned as errors by them.

By Code, § 5955, it is provided: "The Supreme Court has authority--(1) To exercise appellate jurisdiction coextensive with the state, under such restrictions and regulations as are prescribed by law; but in deciding appeals from the chancery court no weight shall be given the decision of the chancellor upon the facts, but the Supreme Court shall weigh the evidence, and give judgment as they deem just."

The change, from previous rule, wrought by the quoted provision, in the particular that review here should be without presumption in favor of the decision of the chancellor on the facts, may be found discussed in Wallen v. Montague, 121 Ala. 287, 25 So. 773; Shows v. Folmar, 133 Ala. 599, 32 So. 495; Claflin v. Muscogee Mfg. Co., 127 Ala. 376, 30 So. 555. As respects the review on the facts, it is de novo.

In Claflin Co. v. Muscogee Mfg. Co., supra, it was said: "On the issue thus made and thus determined by the chancellor and now presented for our determination anew, the burden of proof throughout was upon the complainant." (Italics supplied.)

Obviously, such a review, in respect of the facts, leading to the rendition thereon of such "judgment as they (this court) deem just," comprehends the duty to revise the seasonably taken and appropriately made exceptions, by appellees, to the rejection or reception of evidence.

The propriety vel non, as upon the evidence, of the decree assailed, is determinable, upon the legal evidence noted on the submission in the court of equity; and, to ascertain what the legal evidence in the cause appealed is, this court must take account of and decide appropriately made exceptions to the reception or rejection of evidence noted on the submission in the primary court. It is therefore ruled that the exceptions to competency of the testimony of J. G. Blount, denying his execution of the instrument in question, will be considered, with the view to a proper determination by this court of the major inquiry presented by the appeal, namely, whether the decree assailed by appellant is erroneous as upon the legal evidence noted in the cause.

The question of the competency of J. G. Blount, the grantor, to testify in denial of the execution of the instrument, J. A. Blount, the grantee, being dead, was fully considered and discussed in the opinions delivered on a former appeal. Upon reconsideration of the question, DOWDELL, C.J., and MAYFIELD, SAYRE, and SOMERVILLE, JJ., entertain the opinion, and so cast the conclusion of the court on the inquiry, that it was competent for J. G. Blount, the grantor, to testify in denial of his execution of the instrument assailed; thereby reaffirming the pertinent conclusion of the court as expressed on former appeal. Justices SIMPSON, ANDERSON, and McCLELLAN adhere to their opinion that J. G. Blount was incompetent, under section 4007, Code 1907 (section 1794, Code 1896), to so testify.

"The general rule of law is that negative averments in pleading need not be proved. * * * But where the negative allegation involves a charge of fraud, or breach of official duty, and many other violations of trust of a kindred character, the onus is on the party making the charge; for the presumption of law is always in favor of innocence. 1 Green. Ev. §§ 78-81, incl." Stone, J., in Haney v. Conoly, 57 Ala. 179.

The generally similar doctrine was previously announced, though more amply, in Givens v. Tidmore, 8 Ala. 745, 750, 751, Collier, C.J., writing, in this language: "It is the general rule that the party holding the affirmative of the issue must sustain it by proof; but there are some exceptions in which the proposition, though negative in its terms, must be proved by the party who states it. One class of these exceptions, it is said, includes those cases in which the plaintiff grounds his right of action upon a negative allegation, and where, of course, the establishment of this negative is an essential element in his case. But, where the subject-matter of the negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party."

The doctrine of Givens v. Tidmore, supra, is generally accepted by courts and text-writers. Kerr v. Freeman, 33 Miss. 292, 298; Colorado Coal Co. v. United States, 123 U.S. 307, 317-319, 8 S.Ct. 131, 31 L.Ed. 182; 1 Green. Ev. §§ 78, 80; 6 Cyc. p. 334; 2 Ency. Ev. pp. 802, 803; Jones on Ev. §§ 12, 180.

"* * * When misconduct or crime is alleged, whether in a criminal or civil suit, whether in a direct proceeding to punish an offender or in some collateral matter, the accused is presumed to be innocent until proved guilty." Jones on Ev. § 14; Childs v. Merrill, 66 Vt. 302, 308, 29 A. 532; Stevenson v. Gunning's Estate, 64 Vt. 601, 613, 25 A. 697; 16 Cyc. p. 1081.

In Stevenson v. Gunning's Estate, supra, the Vermont court had to deal with forgery asserted as a defense to a civil action to enforce the payment of a note. The trial court was ruled to have erred in refusing to instruct the jury upon the presumption of innocence in the premises. The basis of the presumption, its nature, effect and the means to overturn it, are thus stated by Greenleaf: "As men do not generally violate the Penal Code, the law presumes every man innocent; but some men do transgress it, and therefore evidence is received to repel this presumption. This legal presumption of innocence is to be regarded by the jury, in...