Hutchinson v. Palmer

• Decision Date: 01 February 1906
• Parties: HUTCHINSON v. PALMER ET AL.
• Court: Alabama Supreme Court

40 So. 339

147 Ala. 517

HUTCHINSON v. PALMER ET AL.

Supreme Court of Alabama

February 1, 1906

Rehearing Denied April 3, 1906.

Appeal from Chancery Court, Jefferson County; Alfred H. Benners Chancellor.

"To be officially reported."

Suit by W. H. Hutchinson against J. T. Palmer and others. From a decree in favor of defendants, complainant appeals. Affirmed.

Webb &amp Amason, for appellant.

Ward &amp Ward and Ward & Houghton, for appellees.

SIMPSON J.

This was a bill in the chancery court by appellant against the appellees, seeking to enjoin the collection of certain judgments in the city court of Birmingham against appellant said judgments having been rendered on notes of appellant, in which were embodied powers of attorney authorizing the confession of judgment on the same if not paid at maturity. The bill alleges that said notes were given for a certain insurance policy then applied for, which policy, when delivered, was of a different character from the one which he had been led to expect by the representation of said defendant, J. T. Palmer, who was acting as agent of the State Mutual Life & Annuity Association of Rome, Ga. Several amendments were filed to the bill, and the chancery court finally sustained a demurrer to the bill as amended, and also a motion to dismiss the bill for want of equity. Said life insurance association is not made a party to the bill.

The appellant moves this court to strike and expunge from the record the answer of the defendant to the original bill, before amendment, and which was embodied in the same paper with the demurrer; also the answer to the amended bill, with the exhibits thereto. The transcript, which is required to be sent to the appellate court on appeal, consists of the entire record of the proceedings up to the time of appeal. 2 Ency. Pl. & Pr. pp. 259, 260. Our rules of practice provide that certain things shall not be copied into the record, but as to other parts of the proceedings, including those here sought to be expunged, our rules permit their omission only on agreement between the parties, or their attorneys. Rules of Practice 29, 30, Supreme Court; Code 1896, pp. 1191, 1192. The motion is overruled.

Admitting the principles invoked by the appellant on the subject of the right of a defendant to have notice of proceedings against him before a valid judgment can be rendered against him, yet this is a right which can be waived by him, and if he executes a note, in which he embodies a power of attorney authorizing an appearance and confession of judgment on failure to pay the note at maturity, this is a waiver of notice, and a judgment rendered, in accordance with the authority therein given is as valid and binding as if rendered on regular service of process. 30 Am. & Eng. Ency. Law (2d Ed.) 110, 111; Teel v. Yost (N. Y.) 28 N.E. 353, 13 L. R. A. 796; 11 Ency. Pl. & Pr. 985, 987, 989; First Nat. Bank of Athens v. Garland (Mich.) 67 N.W. 559, 33 L. R. A. 83, 63 Am. St. Rep. 597; Van Norman v. Gordon (Mass.) 53 N.E. 267, 44 L. R. A. 840, 70 Am. St. Rep. 304; Caller v. Denson, Minor, 19; Hodges & Puckett v. Ashurst, 2 Ala. 301.

It is claimed, however, in the bill of complaint, that the policy which was delivered did not contain any stipulations for certain concessions which he was to have. In the first place it is observed that the only allegation in regard to the kind of policy which complainant was to receive is that the "policy for and in consideration of which only said promissory notes were executed and delivered was," etc. The bill does not allege by whom or how the representations were made that he was to receive such a policy, but it does state that he made a written...