J.H. Arnold & Co. v. Pinckard & Lay

• Decision Date: 11 June 1918
• Docket Number: 7 Div. 497
• Citation: 80 So. 164,16 Ala.App. 590
• Parties: J.H. ARNOLD & CO. v. PINCKARD & LAY.
• Court: Alabama Court of Appeals

80 So. 164

16 Ala.App. 590

J.H. ARNOLD & CO. v. PINCKARD & LAY.

7 Div. 497

Court of Appeals of Alabama

June 11, 1918

On Rehearing, June 29, 1918

Appeal from Circuit Court, Etowah County; John H. Disque, Judge.

Action by J.H. Arnold & Co. against Pinckard & Lay. Judgment for plaintiff, and defendant appeals. Application for rehearing granted, and judgment reversed and remanded.

Culli &amp Martin, of Gadsden, for appellant.

Motley & Motley, of Gadsden, for appellee.

BRICKEN J.

This case is submitted on motion to strike the bill of exceptions the several grounds of said motion being predicated upon a noncompliance with rule 32 of circuit court practice (Code 1907, p. 1526).

From an examination of the paper designated as the bill of exceptions, it appears that the motion is well taken, and that the so-called bill of exceptions is manifestly a flagrant violation of said rule, in that it appears to be a full stenographic report of the trial below, containing, as it does, a statement of everything that was done on the trial, and sets forth practically every word uttered by everybody, witnesses, attorneys, trial judge, etc. In addition thereto, there are copied verbatim et literatim several items of documentary evidence not germane or pertinent to the issues involved. Under the authority of the following cases, the motion to strike the bill of exceptions from the record in this cause will be granted. Southern Railway Co. v. Jackson, 133 Ala. 384, 31 So. 988; Gassenheimer v. Marietta Paper Co., 127 Ala. 183, 28 So. 564; Louisville & Nashville R.R. Co. et al. v Hall, 131 Ala. 161, 32 So. 603; Hester et al. v. Cantrell, 169 Ala. 490, 53 So. 1009; Lucas v. Mays, 2 Ala.App. 497, 56 So. 593; Clancy v. Taylor et al., 12 Ala.App. 557, 68 So. 522; Owens v. State, 11 Ala.App. 309, 66 So. 852; Turner v. Thornton, 192 Ala. 98, 68 So. 813.

In the assignments of error which are based on the record there is nothing to warrant a reversal of the judgment of the court below, and it is therefore affirmed.

On Rehearing.

SAMFORD J.

While the writer of the original opinion in this case is still of the opinion that the bill of exceptions is a flagrant violation of the rule, and that the bill of exceptions should be stricken, the majority holds otherwise, they being of the opinion that the matters set out in the bill of exceptions are necessary to furnish to this court, as near as can be, a true history of the trial in the lower court and to make clear the exceptions reserved for review. That being the case, the court must proceed to a consideration of the cause upon the merits of the rulings.

This was an action by the plaintiff in the court below for damages for the destruction of plaintiff's lien upon personal property. It having been admitted that the mortgage dated October 17, 1913, and due December 1, 1913, conveying the crops of 1913, and each succeeding year until paid, to secure the purchase money of a harrow and guard rail, amounting to $23.50, was lost, plaintiff introduced in evidence the record of the mortgage, showing the filing for record on October 18, 1913, and then, over the seasonable objection of defendant, proved by the oral testimony of a witness that the record was not a correct copy of the mortgage actually filed, by and through which plaintiff claimed a lien, in that, while the original mortgage executed by the mortgagor, who was not a party to this suit, contained the following clause: "And secure the payment of said sum or any other sums I might owe them before said note was paid," etc.--the record read: "And to secure the payment of this note and any other sums we may owe the payee before this note matures," etc. There were many other rulings of the court predicated upon this holding, among others the refusal of the court to permit the defendant, who was shown to have been a purchaser for value of a part of the crops of 1914 and 1915, to show that the mortgage to plaintiff was paid before its due day, and this because in 1915 the plaintiff recovered a judgment in assumpsit, in a suit against the mortgagor, in which suit the plaintiff declared on several notes dated subsequent to the mortgage under which defendant was holding, and also declared on the note secured by the mortgage, the basis of this suit.

Section 3386 of the Code provides that conveyances of personal property are inoperative against creditors and purchasers without notice until recorded. Code 1907, § 3386. It is without dispute in this case that the only notice relied on is the record itself. It would seem to require no citation of authority to sustain the ruling that the defendant had no notice of anything not contained in the record, and such is the holding by the weight of authority of other states. 19 R.C.L. pp. 286, 287.

But by reason of section 3369 of the present Code, relating to the filing for record of conveyances, our courts have laid down the rule that a mistake in recording a mortgage does not prejudice the rights of the mortgagee as against a subsequent purchaser. Chapman & Co. v. Johnson, 142 Ala. 633 38 So. 797, 4 Ann.Cas. 559; Truss v. Harvey, 120 Ala. 636, ...