Gay v. Rogers

• Decision Date: 28 April 1896
• Parties: GAY ET AL. v. ROGERS.
• Court: Alabama Supreme Court

20 So. 37

109 Ala. 624

GAY ET AL. v. ROGERS.

Supreme Court of Alabama

April 28, 1896

Appeal from circuit court, Montgomery county; John G. Winter Special Judge.

Action by Charlotte Thompson Rogers against Gay, Hardie & Co. Judgment for plaintiff, and defendants appeal. Affirmed.

This action was brought on February 16, 1895, by the appellee Charlotte Thompson Rogers, against the appellants, Gay Hardie & Co., to recover the statutory penalty for failure by the defendants, as mortgagees, to enter partial payments on the record of a mortgage after being requested so to do. The complaint was in words and figures as follows: "The plaintiff claims of the defendants the sum of two hundred dollars, for this: That whereas, heretofore, to wit, on the 12th day of December, 1891, one J. D. Brooks executed and delivered to defendants a mortgage on certain real and personal property therein described, which said mortgage was recorded in Book 115, on page 39, of Mortgage Records, in the office of the judge of probate of Montgomery county, Alabama. And plaintiff avers that at the January term of the circuit court of Montgomery county, 1892, she recovered a judgment against the said J. D. Brooks for $2,376 and costs, and had the said judgment recorded in Book 1, on page 51, of Records of Judgments, in the office of the judge of probate of Montgomery county, Alabama, on the 3d day of February, 1892 and said judgment is still unpaid. And plaintiff avers that defendants have received many partial payments on the said mortgage, and that on the 16th day of January, 1895, she requested the said mortgagees, the defendants, in writing to enter on the margin of the record of the said mortgage the dates and amounts of all such partial payments as they had received. And plaintiff further avers that defendants failed for thirty days after receiving said request to enter all partial payments on the margin of the record of said mortgage, and that, by reason of such failure and omission on the part of defendants, they have forfeited to the plaintiff the sum of two hundred dollars, wherefore she brings this suit." To this complaint the defendant demurred upon the following grounds: "(1) That said complaint does not show the kind of property or describe the property on which they claim a lien; (2) that said act is unconstitutional, as it deprives a man of property without due process of law." This demurrer was overruled, and the defendants pleaded the following special pleas: (1) "For further answer to the said complaint, the defendants saith that, at the time the demand was made on defendant to enter the said partial payments on the record of said mortgage, the said plaintiff did not have any lien on or right in the property covered by said mortgage, and was not entitled to demand that such entry should be made. (2) That defendant did comply with the said demand in said complaint named, and entered all partial payments on the record of said mortgage as required by law." The plaintiff demurred to the first plea on the ground that it contains no good defense to this action because the statute does not require the plaintiff to have a lien or claim on the property mortgaged. To the second plea the plaintiff filed a replication, in which she averred "that the defendants did enter some partial payments on the record of said mortgage, but that they did not enter thereon all the partial payments they had received." The demurrer to the first plea was overruled, and issue was joined on said plea and the replication to the second plea.

On the trial of the cause, as is shown by the bill of exceptions the plaintiff offered in evidence a large volume, which was marked on the back, "Record of Mortgages, No. 115, Montgomery County," and, in connection with said book, introduced as a witness one David Allen, who was shown to be a clerk in the office of the judge of probate, and who testified that the book was one of the books kept in the office of the judge of probate of Montgomery county, in which mortgages were recorded; and, in connection with the offer of said book, plaintiff's attorney testified that he had made a written demand on defendants to produce at the trial of this cause the original mortgage, on the margin of the record of which the plaintiff had notified them to enter the record of the partial payments, and the defendants had refused to produce said mortgage. The plaintiff then offered to introduce before the jury certain pages of this book, on which were purported to be copied a mortgage from J. D. Brooks to Gay, Hardie & Co., which was the mortgage referred to in this suit. The defendants objected to the introduction of said book, or any pages thereof, on the ground "that the original records of the probate court cannot be taken from the office, where they belong, and introduced as evidence in another court," and on the further grounds that said record was not verified, because the witness Allen testified that the record of the mortgage was not made by him, and that he did not know by whom it was made, and that the contents of the record of the probate court cannot be proved, except by a certified transcript thereof under the seal of the court. The court overruled this objection, and admitted said pages of the record book to be introduced in evidence, and submitted to the jury as evidence, and to this action of the court the defendant duly excepted. The indorsements on the margin of said pages of said book, purporting to be a record of the mortgage referred to in this suit, are as follows: "This mortgage is entitled to the following credits: December 17, 1893, by $8.41; January 3, 1893, $28.45; January 17, 1893, $620.60. Gay, Hardie & Co." The plaintiff then introduced a book containing the minutes of the circuit court of Montgomery county for the January term, 1892, and offered as evidence the judgment entry therein in the case of Charlotte Thompson Rogers against J. D. Brooks, in which the plaintiff in that suit recovered a judgment against said Brooks for $2,376, together with the costs of the suit. The defendants objected to the introduction in evidence of said minutes on the grounds that it was not the best or proper evidence whereby to prove the condition or existence of the judgment. This objection of the defendants was overruled, and the minute entry was allowed to go to the jury as evidence, and to this action of the court the defendants duly excepted. The plaintiff then offered in evidence a certified transcript of the book of records of judgment liens in the office of the judge of probate of Montgomery county, which showed a certificate of the clerk of the circuit court that Charlotte Thompson Rogers had recovered a judgment against J. D. Brooks for $2,376 and the costs of the suit, and that such certificate had been recorded in said record of judgment liens. In this connection the plaintiff offered in evidence a certain book, proven to be a record of judgment liens taken from the office of the judge of probate in Montgomery county, and offered as evidence certain entries on page 51 thereof, which entries were a memoranda, required by statute on the filing of the certificate, of the...