Jones v. Mullin
| Decision Date | 13 January 1949 |
| Docket Number | 4 Div. 505. |
| Citation | 251 Ala. 501,38 So.2d 281 |
| Parties | JONES v. MULLIN et al. |
| Court | Alabama Supreme Court |
A L. Patterson, of Phenix City, for appellant.
Smith & Smith and H. A. Ferrell, all of Phenix City, for appellees.
The following pleas were interposed by defendant:
IV. Further comes the defendant and claims of the plaintiff by way of recoupment the sum of $35,000 damages for that heretofore on about to wit: Defendant turned the tractor subject to the suit over to the plaintiff to repair on about April 7, 1947 and was to receive same back for use in construction work on about May 1, 1947; the said tractor being repaired by the agents, servants or employees of the plaintiff acting in the line and scope of their employ, said agents, servants or employees being Mr. Shinholster and Mr Garner, others whose names are unknown to this defendant; defendant was using said tractor to construct reservoirs for farm purposes and the growing of fish and other purposes and had a number of contracts for such work at said time. The work on said tractor being warranted by the plaintiff and plaintiff as aforesaid failed to properly repair said tractor, repair being faulty, improperly and negligently done and as a proximate cause and direct consequence of said negligence, the tractor broke down or was not in proper condition to do the work and as a proximate cause and direct consequence of said delay and negligence in repairing said tractor, the defendant lost the use of the tractor for a period of 36 weeks or more at a rental value of about $900 per week and otherwise being delayed and hampered in performing said work by the said plaintiffs, and all of said damages being the proximate cause and as a consequence of the negligence, aforesaid.
V. The defendant pleads the general issue in short by consent with leave to offer in defense of said action any matter that could be legally pleaded as a defense of said action with leave to offer any evidence in support of said defense, with like leave to the plaintiff.
These charges were given at the request of plaintiff:
1. The Court charges you that if you find from the consideration of all the evidence in this case that plaintiff repaired the tractor of the defendant, Marion Jones in a good and workmanlike manner and has not been paid therefor then and in that event said plaintiff, the Mullin Company, had a lien on said tractor for said labor and materials used by it in repair of said tractor and could enforce said lien by attachment in this Court and if you find that said attachment was issued out of this Court therefor and the Sheriff took into his possession the said tractor of said Marion Jones under said writ of attachment then the plaintiff is not liable to Marion Jones for the use of said tractor pending the trial of this case.
2. The Court charges you, Gentlemen of the Jury, that if you believe from the consideration of all the evidence in this case that the plaintiff repaired the tractor of the defendant in a good and workmanlike manner and has not been paid for repairing the tractor then your verdict should be in favor of the plaintiff for fair and reasonable value of the said cost of repairs at the time of the doing of said work.
4. The Court charges you, Gentlemen of the Jury, that as a matter of law every mechanic has a lien for labor and materials furnished in the repair of a vehicle or machine like the tractor in question, which is enforceable by attachment on the machinery or equipment repaired providing he has performed his work and furnished said materials in accordance with the recognized standards of like work by the people engaged therein, which lien may be enforced by attachment to such machinery or vehicle to the payment of the fair and reasonable cost thereof.
5. The Court charges you, Gentlemen of the Jury, that if you find from the consideration of all the evidence that the plaintiff repaired said tractor of said Marion Jones and furnished labor, parts and materials therefor and has not been paid for the same and said work was done in a good and workmanlike manner then and in that event your verdict should be for the plaintiff for the fair and reasonable value of said labor and materials furnished by said plaintiff in repairing of said tractor.
This appeal is by the defendant from a judgment rendered in favor of the appellee in an action of common assumpsit for work and labor done and material furnished in making repairs on a truck and tractor for the defendant. Trial resulted in a verdict and judgment for the plaintiff on March 25, 1948. Motion for a new trial seasonably filed was overruled April 12, 1948. The transcript of testimony made by the reporter was filed with the clerk on the 14th of October, 1948.
Motion is made here by the appellee to strike the transcript of testimony as filed on the ground that it was not filed within 70 days from the overruling of the motion for new trial. In response to the motion the appellant has filed two affidavits going to show that the delay was occasioned on account of the reporter being heavily loaded with work and timely request for the preparation of the transcript. Appellee has not pointed out any defect or errors in the record of the testimony as filed with the clerk with supporting affidavits as required by Rule 48, Supreme Court Practice, the last paragraph of which provides: 'The certified transcript, though filed after the ninety-day period herein referred to but within the time for taking an appeal, will nevertheless be considered by the court if no objection thereto is presented upon the submission of the cause; and it may be so considered in the discretion of the court, even though the point as to the delay be presented
on appeal, unless counsel objecting thereto shall point out, with supporting affidavit, material omissions or defects in such certified transcript which should and would have been the subject of contest before the trial judge; in which latter event the certified transcript is not to be considered.' Code 1940, Pocket Part 1947, Tit. 7, Appendix, p. 117, Rule 48.
No material omission or defects are pointed out by the appellee with supporting affidavits. The motion to strike, therefore, will be overruled. Rule 48 supra.
We deem it not improper to point out that in such Rule...
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