Hall v. First Bank of Crossville

• Decision Date: 18 May 1916
• Docket Number: 7 Div. 787
• Citation: 196 Ala. 627,72 So. 171
• Parties: HALL et al. v. FIRST BANK OF CROSSVILLE
• Court: Alabama Supreme Court

72 So. 171

196 Ala. 627

HALL et al. v. FIRST BANK OF CROSSVILLE

7 Div. 787

Supreme Court of Alabama

May 18, 1916

Appeal from Circuit Court, DeKalb County; W.W. Haralson, Judge.

Action by the First Bank of Crossville against J.D. Hall and others. Default judgment for plaintiff, and defendants appeal. Transferred from the Court of Appeals under Act April 18 1911 (Acts 1911, p. 450) § 6. Affirmed.

Isbell & Scott, of Ft. Payne, for appellants.

I.M Presley and Hunt & Wolfes, all of Ft. Payne, for appellee.

THOMAS J.

The appeal is taken upon the record from a judgment by default against appellants. The defendants moved to quash the execution issued thereon and to set aside, vacate, and annul the judgment, on the grounds that the complaint does not show a substantial cause of action, in that it claims against James A. Croley as an indorser of the note, without alleging any demand on the maker of the note, or a waiver of demand on the part of Croley; and that the record shows that the judgment obtained was of more binding effect than was sought in the complaint.

A joint appeal was taken by J.D. Hall and James A. Croley, as evidenced by the recitals of an appeal bond (though signed only by J.D. Hall), that "on the 4th day of September, 1915, First Bank of Crossville recovered a judgment against J.D. Hall and Jas. A. Croley upon a motion to quash and vacate execution a judgment for the sum of $245 obtained by said First Bank of Crossville and costs of suit, in the circuit court of said county, from which judgment J.D. Hall and Jas. A. Croley have obtained an appeal returnable to the next term of Court of Appeals of Alabama. Now, therefore, if the said J.D. Hall and James A. Croley shall prosecute said appeal to effect, etc.," and by the terms of the notice of appeal to appellee, to the effect that "a judgment was rendered against J.D. Hall and James A. Croley, in favor of the First Bank of Crossville, a corporation in a cause wherein the First Bank of Crossville, a corporation, plaintiff, and J.D. Hall, M.D., and James A. Croley, defendants, in the circuit court of said county, on the 18th day of February, 1915, and from such judgment J.D. Hall and James A. Croley, defendants, have obtained an appeal to the Court of Appeals of Alabama." The certificate of appeal was to like effect as the notice of appeal.

Though the appeal bond recites that the appeal is taken from the judgment on the motion to quash the execution and to set aside and annul a judgment, and that the judgment so appealed from was of date September 4, 1915, no such judgment on the motion is contained in the record. It has been held that a docket memorandum of the ruling of the presiding judge is not sufficient to show the judgment of the court, if no formal judgment was entered thereon; that the docket memorandum is merely a direction to the clerk as to how the judgment or decree of the court shall be enrolled or entered. McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62; McSwean v. State, 175 Ala. 21, 57 So. 732; Wynn et al. v. McCraney et al., 156 Ala. 630, 46 So. 854; Morgan v. Flexner et al., 105 Ala. 356, 16 So. 716. The notice of appeal and the certificate of appeal showed appeal from the judgment rendered on the 18th day of February, 1915, and not from the judgment on the motion to quash, set aside, and annul the judgment described by the bond to have been entered on September 4, 1915.

From whatever judgment or ruling of the court the appeal was taken, it is clear that the appeal was taken jointly by J.D. Hall and James A. Croley. The appeal could have been prosecuted by either party against whom the judgment was rendered alone. Acts 1911, p. 589. The appeal and the assignment of errors being joint, such assignment is not availing unless injurious to all who join therein. Gilley et al. v. Denman, 185 Ala. 561, 64 So. 97; Fletcher et al. v. Riley, 169 Ala. 433, 53 So. 816; Beachman v. Aurora Silver Plate Mfg. Co., 110 Ala. 555, 18 So. 314.

The judgment by default of February 18, 1915, was taken against J.D. Hall and James A. Croley jointly; and, if the joint assignment of error cannot be sustained as to J.D. Hall, it is not available to James A. Croley. The averments of the complaint were: "The plaintiff claims of the defendant $200 due on a certain promissory note made by him on the 11th day of November, 1913, and due and payable on the 15th day of April, 1914"; that the note was made payable "to the order of the defendant, J.D. Hall, M.D., with interest thereon from date"; and that "the said J.D. Hall, M.D., and James A. Croley, the defendants herein, placed their signatures upon the back of said note as indorsers, before the delivery" to the plaintiff bank. It is thus averred that one of the defendants was the maker of the note, which being true, such defendant, being primarily liable, was not entitled to presentment for payment nor to notice of dishonor. If, however, Croley or Hall, or both of them, whose names were placed on the back of the note as indorsers before its delivery to the bank, was or were the maker or makers, or the party or parties securing the accommodation from the bank, they or he would be primarily liable to the bank for the payment of the note. The true fact as to the sale of the note, or the obtaining of the accommodation from the bank, may be shown by the evidence. On the other hand, at the trial a defendant would have the right to show that he is not primarily liable, or that he is not liable on the note as a maker but only as an indorser. Long v. Gwin, 188 Ala. 196, 202, 66 So. 88; Randolph on Commercial Paper, vol. 2, §§ 833, 841.

No judgment can be annulled, arrested, or set aside, for any matter not previously objected to, if the complaint contains a substantial cause of action. Code, § 4143. Judgments conforming to the cause of action set up in the complaint, and not foreign thereto, will be sustained. Code, § 4143; Kirkland v. Pilcher, 174 Ala. 170, 57 So. 46; Smith v. Dick, 95 Ala. 311, 10 So. 845; Ritch v. Thornton, 65 Ala. 310, G.St.R.R. Co. v. Hanlon, 53 Ala. 70. An exception may be taken on the hearing of such a motion to any ruling or decision of the court, and a bill of exceptions may be signed and certified as a part of the record as in civil cases, and an appeal taken to this court. Code, § 4145. Without a bill of exceptions, evidence is presumed to have been introduced at the trial,

to support the judgment. Dobson v. Dickson, 8 Ala. 252; Burdeshaw v. Comer, 108 Ala. 617, 18 So. 556; Cruise-Splawn L.Co. v. Sorrell, 165 Ala. 259, 51 So. 727; M. & B.R.R. Co. v. L. & N.R.R.Co., 172 Ala. 313, 54 So. 1002; Hanby v. Phillips & Buttorff Mfg. Co., 12 Ala.App. 543, 68 So. 477. No presumption, however, need be indulged as to the correctness of the court's ruling on the motion, for the record failed to show a judgment thereon. Gunter v. Mason, 125 Ala. 644, 27 So. 843.

On the question of a substantial cause of action being shown by the complaint, it is said in Amer. Bond. Co. v. New York & Mexican W. Co., 11 Ala.App. 578, 66 So. 847, that:

"If the complaint in this case contained a substantial cause of action, and the judgment of the court is responsive to the complaint, the appellant cannot complain of errors or defects in the complaint which would have subjected it to demurrer. Stewart v. Goode et al., 29 Ala. 476; Kyle v. Caravello, 103 Ala. 153, 15 So. 527; Walker v. Mobile Marine D. & M.I. Co., 31 Ala. 530; Harris v. Plant & Co., 31 Ala. 644; Childress et al. v.

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