George F. Dittman Boot & Shoe Co. v. Mixon
Decision Date | 29 October 1898 |
Citation | 120 Ala. 206,24 So. 847 |
Parties | GEORGE F. DITTMAN BOOT & SHOE CO. v. MIXON ET AL. |
Court | Alabama Supreme Court |
Appeal from circuit court, Marion county; Thomas R. Roulhac, Judge.
Action by H. E. Mixon and others against the George F. Dittman Boot & Shoe Company. From a judgment for plaintiffs, defendant appeals. Affirmed.
The action was commenced by an attachment sued out by the plaintiffs. The defendant was a foreign corporation, and it was upon this ground that the attachment was sued out. The original affidavit, made as preliminary to the suing out of the writ of attachment, described the demand sued for as "the sum of six hundred dollars, which said amount is justly due, after allowing all just offsets and discounts." The complaint, which was subsequently filed contained four counts. The first count claimed $600 due the plaintiffs, for that the defendant had refused, after three several written requests, to mark upon the margin of the mortgage record the partial payments and full satisfaction of the mortgage debt which was due from the plaintiffs to the defendant. The complaint was subsequently amended by striking out the first count. The three remaining counts of the complaint each claimed the statutory penalty of $200 for the failure of the defendant, as mortgagee, to enter the fact of payment of satisfaction on the margin of the record of the mortgage, after being requested in writing to make such entry, and for the failure of the defendant to enter the fact of several partial payments upon the margin of the record of the mortgage as requested. Subsequently the affidavit was amended so as to describe the demand sued for as a demand against the defendant "in the sum of six hundred dollars, by three statutory penalties of two hundred dollars each, which said amount and demands are justly due, after allowing all just offsets and discounts." The defendant moved to strike the amended affidavit from the file, upon the ground that the amendment is a departure from the cause of action as stated in the original affidavit, and because there is a total variance between the cause of action set forth in the original affidavit and the one set forth in the amended affidavit. This motion was overruled, and the defendant duly excepted. The other facts of the case, necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. The court instructed the jury that the plaintiffs could recover only one penalty. The defendant requested the court to give to the jury the general affirmative charge in its behalf, and duly excepted to the court's refusal to give said charge as asked. There were verdict and judgment for the plaintiffs. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
Appling & McGuire, for appellant.
Daniel Collier and W. C. Davis, for appellees.
The appellees, residing in Marion county, Ala., began suit by attachment against the appellant, a foreign corporation, to recover the statutory penalty imposed upon a mortgagee, who has been paid or satisfied, for failure to enter the fact of payment or satisfaction on the margin of the...
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