Johnson v. Frix

• Decision Date: 06 February 1912
• Citation: 58 So. 427,177 Ala. 251
• Parties: JOHNSON v. FRIX.
• Court: Alabama Supreme Court

58 So. 427

177 Ala. 251

JOHNSON v. FRIX.

Supreme Court of Alabama

February 6, 1912

Rehearing Denied May 1, 1912.

Appeal from Gadsden City Court; John H. Disque, Judge.

Action by R. L. Frix against M. B. Johnson for penalty for failure to satisfy a mortgage of record. Judgment for plaintiff, and defendant appeals. Affirmed.

Mayfield and Simpson, JJ., dissenting in part.

As a specimen count, count 3 is given, as follows: "Plaintiff claims of defendant the further and additional sum of two hundred ($200) dollars, as a statutory penalty for failure to satisfy on the mortgage records of this county, within two months after demand in writing therefor, a certain mortgage executed by plaintiff to Thomas L. Johnson & Co. Plaintiff avers that, after said mortgage had been fully paid or satisfied, he, on or about the 9th day of July, 1908, made demand in writing on defendant to satisfy the same on the records of this county, and defendant failed to do so for two months or more after the making of said demand. Said mortgage having been executed by plaintiff to Thomas L. Johnson & Co. on December 2, 1901, and due on or before the 2d day of October, 1902, and recorded in mortgage book 56, page 602 Etowah county, Ala. And plaintiff avers that Thomas L Johnson & Co. is a late partnership composed of Thomas L Johnson, deceased, and defendant M. B. Johnson; that since the execution of said mortgage, but prior to said demand Thomas L. Johnson died, and said M. B. Johnson is the surviving partner of said Thomas L. Johnson & Co." The demurrer raised the question that no demand was ever made on Thomas L. Johnson & Co.; that satisfaction was made to Thomas L. Johnson & Co., and demand was made on M. B. Johnson; that the account shows on its face that the defendants held no mortgage on record against the plaintiff; it fails to show that the defendant was owner or holder of said mortgage at the time same was satisfied; that no demand was made on defendant as surviving partner.

George D. Motley, of Gadsden, for appellant.

Goodhue, Brindley & White and Dortch, Martin & Allen, all of Gadsden, for appellee.

MAYFIELD J.

The majority of the court are of the opinion that the bill of exceptions must be stricken, on appellee's motion, because not signed within the time prescribed by the statute. It is alleged in this motion--and the allegation is supported by the affidavits of counsel for appellee--that although on its face the bill of exceptions appears to have been signed within the time allowed by the statute, and to have been indorsed by the trial judge in conformity to the statutory requirement as to the time of filing, yet as a matter of fact it was not so signed. The majority are of the opinion that the facts alleged in the motion may be proven by affidavits, as was done in this case, notwithstanding that it appears, by the trial judge's indorsements of the bill and by the face of the record itself, that the presentation and signing were in conformity to the statute; and that this decision is in line with the holding in the cases of L. & N. R. R. Co. v. Malone, 116 Ala. 600, 22 So. 897, Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843, and Leeth v. Kornman, Sawyer & Co. (App.) 56 So. 757.

SIMPSON J., and the writer, dissent on this proposition, and are of the opinion that the bill of exceptions in this case has, by virtue of express provisions of our statutes (Code, §§ 3018, 3019) become a part of the record, and is for that reason entitled to all the presumptions of verity and conclusiveness that attach to any other part of the record; and that it cannot be contradicted by parol proof, and certainly not by ex parte affidavits. They think that the evils to flow from such a practice will prove the unwisdom of such a precedent. They are of the opinion that if the appellee can thus contradict this part of the record--can show by ex parte affidavits that the bill certified is not a bill of exceptions, and therefore not a part of the record--he might,...