George F. Dittman Boot & Shoe Co. v. Mixon

Decision Date29 October 1898
Citation120 Ala. 206,24 So. 847
PartiesGEORGE F. DITTMAN BOOT & SHOE CO. v. MIXON ET AL.
CourtAlabama 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.

COLEMAN J.

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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9 cases
  • St. Louis, Iron Mountain & Southern Railway Co. v. State
    • United States
    • Arkansas Supreme Court
    • March 31, 1913
    ...will be taken as intended that is not clearly expressed in the statute. 79 Ark. 517, 521. See also L. R. 2 C. P. Cas. 583; 71 Cal. 541; 120 Ala. 206; 175 N.Y. 328; 46 N.Y. 644; 144 N.C. 532, 157 Pa.St. 367, 378; 19 N.H. 286; 45 N.Y. 446; 179 N.Y. 448; 107 F. 870; 97 S.W. 724; 72 Miss. 491; ......
  • Deutsche Bank Nat'l Trust Co. v. Walker Cnty.
    • United States
    • Alabama Supreme Court
    • June 28, 2019
    ...the statute of registration," Alabama has "no law which requires a mortgagee to record his mortgage." George F. Dittman Boot & Shoe Co. v. Mixon, 120 Ala. 206, 209, 24 So. 847, 848 (1898). See Gay v. Rogers, 109 Ala. 624, 628, 20 So. 37, 40 (1896) ("There is no law which requires a mortgage......
  • Drennen Motor Car Co. v. Evans
    • United States
    • Alabama Supreme Court
    • April 22, 1915
    ...S. Co. v. Mixon, 120 Ala. 207, 209, 24 So. 847; Williams v. Hendricks, 115 Ala. 277, 22 So. 439, 41 L.R.A. 650, 67 Am.St.Rep. 32. In Dittman v. Mixon, supra, statute was held applicable to a nonresident corporation that may be attached for the penalty. In the case of Walker v. English, 106 ......
  • Martin v. Walker
    • United States
    • Alabama Supreme Court
    • April 6, 1916
    ... ... by H.E. Martin against W.R. Walker and George Gosdin, as ... partners, for the penalty for the failure ... payment or satisfaction of record. Dittman Boot & Shoe ... Co. v. Mixon, 120 Ala. 206, 24 So. 847. In ... ...
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