Kimball v. Penney

• Decision Date: 17 December 1897
• Citation: 117 Ala. 245,22 So. 899
• Parties: KIMBALL v. PENNEY.
• Court: Alabama Supreme Court

22 So. 899

117 Ala. 245

KIMBALL v. PENNEY.

Supreme Court of Alabama

December 17, 1897

Appeal from circuit court, Morgan county; W. W. Callahan, Special Judge.

Action by James E. Penney against Matilda Kimball. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action brought by the appellee against the appellant and counted upon a promissory note. The cause was originally commenced in a court of a justice of the peace. Upon the recovery of judgment therein by the plaintiff, the case was removed to the city court by certiorari, and from there was transferred to the circuit court. The facts in reference to such transfer are stated in the opinion. The substance of the pleas interposed by the defendant in the circuit court, and the replications thereto, are sufficiently stated in the opinion. The defendant demurred to the replications filed by the plaintiff upon the following grounds: (1) That they constitute no answer to the pleas of the defendant; (2) that they did not set up any fact or facts which bar or preclude the defendant from a recovery upon her several pleas. These demurrers were overruled. Thereupon the defendant filed a rejoinder, in which he set up that, if she made such statement of contract as alleged in the plaintiff's replications, it was made under the impression that the note was for a much smaller sum than the amount sued for, and that the plaintiff purchased said note with the full knowledge of all the facts, and at a greatly reduced rate, after the same was due and payable; and, further, that, if such contract or statement was made by the defendant as set out in the plaintiff's replication, it was void, because it was not in writing, signed by the defendant. To this rejoinder the plaintiff demurred upon various grounds, which set up in different phases that said rejoinder was no answer to the replication. This demurrer was sustained, whereupon issue was joined upon the replications. The other facts of the case are sufficiently stated in the opinion. The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence the court rendered judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the court upon the pleadings, and the rendition of judgment in behalf of the plaintiff.

Cofer &amp Browne, for appellant.

Speake & Russell, for appellee.

COLEMAN J.

The suit began before a justice of the peace upon a promissory note, in which court the plaintiff recovered judgment. The defendant removed the cause to the city court of Decatur by statutory certiorari, issued by the judge of probate. Judgment nil dicit was rendered for plaintiff in the city court. By act of the legislature the city court of Decatur was abolished, and the causes and proceedings in that court were transferred to the circuit court of Morgan county. In the circuit court a motion was made by the defendant for a new trial. This motion was heard and adjudicated by O. Kyle, as special judge. The judgment entry is as follows: "The judge of this court being related to the plaintiff, O. Kyle, an attorney at law, is selected by the parties and agreed upon by them to try this motion." The motion for a new trial was granted, and the cause placed upon the docket for trial upon its merits. The following judgment entry was made: "Come the parties by their attorneys, and the presiding judge being incompetent to try this case, and the parties having failed to agree upon an attorney to try the same, the clerk of the court appointed W W. Callahan, an attorney learned in...