Hodge v. Joy

• Decision Date: 10 November 1921
• Docket Number: 7 Div. 210.
• Citation: 92 So. 171,207 Ala. 198
• Parties: HODGE ET AL. v. JOY ET AL.
• Court: Alabama Supreme Court

92 So. 171

207 Ala. 198

HODGE ET AL. v. JOY ET AL.

7 Div. 210.

Supreme Court of Alabama

November 10, 1921

Rehearing Denied Feb. 2, 1922.

Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.

Bill by Ethel Clifford Joy and J. A. Clifford, as heirs at law of Mrs. Annie Clifford, against H. L. Hodge and Michael Clifford, to establish and enforce the execution of a parol trust in certain property, or to have declared a resulting trust in their favor. From the decree granting the relief prayed, respondents appeal. Affirmed.

Ross Blackmon, of Anniston, J. J. Mayfield, of Montgomery, and Rutherford Lapsley and J. B. Holman, Jr., both of Anniston for appellants.

Knox Acker, Sterne & Liles, of Anniston, for appellees.

THOMAS J.

The final decree is dated January 7, 1921; notes of testimony on submission are of date December 16, 1920, and the date of closing the taking of testimony in open court April 29, 1920. The complainants' note of testimony embraced the testimony of the witnesses named, and recited to have been "taken in open court"; that of respondents was upon depositions of the witnesses indicated. Appellant has transmitted to the clerk of this court stenographic notes purported to have been filed in the circuit court July 28 1920, by the official reporter, for the purpose of reference to ascertain who was the presiding judge at the taking of the testimony on which the submission was had.

We need only refer to and consider the record proper and pertinent facts of which the court takes judicial knowledge to ascertain whether a material part of this testimony was "taken in open court" before the judge who rendered the final decree. It was to testimony voluntarily taken in open court ore tenus by the parties that the rule of presumption was given application in chancery cases. Brassell v. Brassell, 205 Ala. 201, 87 So. 347; McSwean v. McSwean, 204 Ala. 663, 86 So. 646; Ray v. Watkins, 203 Ala. 683, 85 So. 25; Andrews v. Grey, 199 Ala. 152, 74 So. 62. This action of the parties in so taking the testimony was the reason for application in chancery cases of the rule at law ( Hackett v. Cash, 196 Ala. 403, 72 So. 52; Acts 1915, p. 705), notwithstanding section 5955, subd. 1, of the Code and the right or provisions of the statute for taking evidence by deposition. It is held that, not having taken testimony ore tenus in open court on any issue of fact, the rule of the statute, section 5955, subd. 1, is imperative as a declared legislative intent (Johnston v. Fondren, 204 Ala. 656, 87 So. 94; Freeman v. Blount, 172 Ala. 655, 659, 660, 55 So. 293; Claflin v. Muscogee Mfg. Co., 127 Ala. 376, 383, 384, 30 So. 555; Woodrow v. Hawving, 105 Ala. 240, 246, 16 So. 720; McWilliams v. Phillips, 71 Ala. 80). Having waived or been deprived of the right to a review without presumption in this court, by the taking of testimony ore tenus in open court as to one presiding judge, appellants' right under the statute could not be said to have been so affected by taking testimony ore tenus in open court before a different judge (not presiding when the testimony was so taken) rendering the final decree in the case. As long as the reason for a rule exists, so long does that rule prevail; when the reason ceases, the rule fails. Betts v. Ward, 196 Ala. 248, 72 So. 110; Bank of Montg. v. Plannett's Adm'r, 37 Ala. 222. See, also, L. & N. v. Abernathy, 197 Ala. 512, 533, 73 So. 103.

The record and facts of which the court takes judicial knowledge are sufficient, since facts judicially known are not required to be pleaded or proved. Moon v. Hines, 205 Ala. 355, 87 So. 603, 605, 13 A. L. R. 1020. Facts of judicial knowledge are held to be those concerning the various commissioned officers of the state and the extent of their authority (Casey v. Bryce, 173 Ala. 129, 55 So. 810; Cary v. State, 76 Ala. 78; Miller v. McMillan, 4 Ala. 527; Ingram v. State, 27 Ala. 17); the expiration of their terms of office (Ragland v. Wynn's Adm'r, 37 Ala. 32; Coleman v. State, 63 Ala. 93); the terms of the circuit courts ( Lindsay v. Williams, 17 Ala. 229; Rodgers v. State, 50 Ala. 102); and that the court convened on a certain day (McMullan v. Long [Ala.] 39 So. 777); tables of mortality (Gordon v. Tweedy, 74 Ala. 232, 49 Am. Rep. 813); the extended development of the iron industry in the state, etc. (Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192); general panics and financial disturbances and their general effect on the value of property (L. & N. v. Holland, 173 Ala. 675, 690, 55 So. 1001; Randle v. Winona Coal Co. (Ala. Sup.) 89 So. 790); such facts as the Acts of Congress and general orders of the departments of government (M. J. & K. C. v. Bromberg, 141 Ala. 258, 282, 37 So. 395; Webb v. White Eng. Corp., 204 Ala. 429, 85 So. 729; Moon v. Hines, supra Ensley v. Simpson,

166 Ala. 366, 383, 52 So. 61.)

By the analogy of the foregoing decisions this court judicially knows that when the testimony was taken by consent of the instant parties in open court anterior to and on April 29, 1920, Judge Merrill was presiding judge of the circuit embracing Calhoun county; and the court further has judicial knowledge of the fact that Judge A. P. Agee, rendering the final decree, was not a presiding judge of the circuit court in this state on or before the dates on which the transcript shows the evidence in question was taken. The fact that Judge Merrill was presiding when a portion of the testimony was taken ore tenus in open court is shown by two questions propounded to witness by appellees, referring to or using Judge Merrill's name as the judge then presiding. It is unnecessary to remark that we have the right of recourse to all sources of specific information for verification of a fact of which the court takes judicial knowledge. 1 Greenl. Ev. (14th Ed.), § 6; 23 Cor. Jur. § 2001, p. 169. In Gordon v. Tweedy, supra, it was said:

"It is customary for courts to take judicial knowledge of what ought to be generally known within the limits of their jurisdiction. This cognizance may extend far beyond the actual knowledge, or even the memory of judges, who may therefore resort to such documents of reference, or other authoritative sources of information as may be at hand, and may be deemed worthy of confidence. The rule has been held, in many instances, to embrace information derived informally by inquiry from experts." 74 Ala. 237, 49 Am. Rep. 813.

That we do not give application in this case to the rule of Brassell v. Brassell, supra, and other cases cited, is not by reason of an examination of the stenographic notes transmitted to the clerk of this court, but from the intrinsic evidence contained in the transcript and the foregoing fact, of which judicial knowledge is taken.

We are thus brought to a consideration of the evidence under the rule of section 5955, subdivision 1, of the Code, requiring this court to weigh the evidence and be not influenced by the decision of the trial court upon the facts; to try the same de novo without presumptions in favor of the findings of fact by the circuit court. Johnston v. Fondren, supra; Porter v. Henderson, 204 Ala. 564, 86 So. 531.

A shorthand rendition of the history of ownership and proprietorship of the Alabama Hotel in Anniston, Ala., by and previous to that of M. Clifford is that the same is owned by the Anniston Hotel Company, a corporation, which had leased the property to Scoville, Stubbs & Keen, with certain personal properties therein-"furniture and fixtures used by Scoville, Stubbs & Keen." That tenancy having terminated, on October 13, 1909, the owner leased the same to Frank G. Warden of Newark, Ohio, who went into possession and operated the property for a term to extend to January 1, 1915; and on January 29, 1913, said landlord extended the lease with said Warden to December 31, 1922, upon the terms and conditions set forth embracing paragraph 8, infra, providing for forfeiture on default in manner indicated. On February 1, 1913, said Warden subleased to the Alabama Hotel Company, a corporation, which went into possession of the property and operated it until March 17, 1914, when that corporation duly executed a bill of sale to the furniture and fixtures contained in the hotel to M. Clifford, said instrument reciting as a consideration the sum of $30,000, $8,000 paid in cash and 7 notes aggregating $22,000, of which it is recited that the same are "secured by mortgage this day given to F. G. Warden, as trustee for the Alabama Hotel Company, a corporation." On the same day (March 17, 1914) said corporation duly executed to said Clifford a transfer of its lease to the hotel, reciting a consideration of $1 and other valuable considerations paid by said Clifford, and assigned unto him "all its interest in and to a certain lease on the hotel building known as the Alabama Hotel, situated on the northwest corner of Noble and Twelfth streets in the city of Anniston, Ala., with lands and appurtenances thereto," and further reciting that-

"Michael Clifford on his part assumes said lease and *** assumes all the obligations imposed upon the *** Alabama Hotel Company in and by said lease from F. G. Warden to *** Alabama Hotel Company."

And on the same day the consideration of said written instruments was given further expression by Clifford's chattel mortgage to "F. G. Warden trustee for the use and benefit of the Alabama Hotel Company," reciting the indebtedness of $22,000, evidenced by the seven promissory notes due, respectively, March 17, 1915, 1916, 1917, 1918 1919, 1920, and 1921; and to secure the payment of said notes, granted, bargained, sold, and conveyed unto F. G. Warden as trustee for the use and benefit of the Alabama Hotel Company "all the furniture and fixtures now contained in the Alabama Hotel in...