Hutcheson v. Powell

• Decision Date: 06 April 1891
• Citation: 92 Ala. 619,9 So. 170
• Parties: HUTCHESON ET AL. v. POWELL.
• Court: Alabama Supreme Court

9 So. 170

92 Ala. 619

HUTCHESON ET AL. v. POWELL.

Supreme Court of Alabama

April 6, 1891

Appeal from circuit court, Geneva county; J. M. CARMICHAEL, Judge.

Action on a promissory note by Daniel Powell against J. M. Hutcheson and J. R. Wilson, partners as Hutcheson & Wilson. Code Ala. § 2568, provides that waiver of exemptions as to personal property "may be made by a separate instrument in writing, subscribed by the party making the same, or it may be included in any bond, bill of exchange, promissory note or other written contract executed by him." Defendants appeal.

M E. Milgen, for appellants.

F J. Milgen, for appellee.

WALKER J.

This is a suit on a promissory note, and was commenced by attachment against Hutcheson & Wilson, a firm or partnership composed of J. M. Hutcheson and J. R. Wilson. The writ of attachment was levied on a lot of saw-logs as the property of the defendants. At the return-term of the writ the defendants appeared, and to the complaint filed pleaded in short by consent: (1) Payment; (2) set-off; (3) recoupment; (4) want of consideration; (5) failure of consideration. The judgment however, was by nil dicit, the entry reciting: "Come the parties by their attorneys, and defendants say nothing in bar or preclusion of plaintiff's demands." No bill of exceptions was reserved.

1. The complaint alleges that in the note sued on defendants waived all their exemptions under the constitution and laws of Alabama. The judgment directs that execution issue with waiver as to personalty. It is now urged that the clause in the judgment relating to the waiver of the exemptions could have been properly entered only against the member of the defendant firm who signed the firm name to the note sued on. The note is not set out in the complaint or elsewhere in the record, and, the evidence which was before the circuit court not having been preserved by bill of exceptions, it does not appear by whom the note was signed, or in what manner the stipulation for the waiver of exemptions was entered into. The assignment of error under discussion is made on the assumption that one of the defendants signed the name of the firm to the note, and that the clause waiving exemption is binding only on him. The judgment of the circuit court cannot be reversed on such mere assumption. For aught that appears in the record, the agreement to waive exemptions as to personal property may have been executed by both defendants in strict conformity to the statute. Section 2568, Code 1886. It is not necessary, however, for the record to show this. The burden is on the appellants to support their assignment of error by showing that the evidence before the circuit court was such as not to authorize the insertion in the judgment of the clause relating to the waiver of exemptions as to both defendants. This they have not done. The judgment of the circuit court must be presumed to be free from error until the contrary is affirmatively shown. Beadle v. Davidson, 75 Ala. 494; Hosea v. Talbert, 65 Ala. 173; 3 Brick. Dig. p. 493. In support of the judgment we must presume, in the absence of any showing to the contrary, that the note sued on and exhibited before the trial court showed that the defendants entered into the stipulation to waive exemptions in such manner as to authorize a judgment against them with waiver as to personalty.

2. The record does not show that the indorsement of the fact of a waiver of exemptions was made on the writ of attachment, as required by section 2571 of the Code. If the judgment had been taken by default the absence of the indorsement would have rendered it erroneous as to the clause relating to the waiver of exemptions. Fears v. Thompson, 82 Ala 294, 2 South. Rep. 719. But the claim of a waiver of exemptions was alleged in the complaint, as required...