Lloyd's of London v. Fidelity Securities Corp.

• Decision Date: 07 October 1958
• Docket Number: 1 Div. 757
• Citation: 105 So.2d 728,39 Ala.App. 596
• Parties: LLOYD'S OF LONDON v. FIDELITY SECURITIES CORPORATION.
• Court: Alabama Court of Appeals

Page 728

105 So.2d 728

39 Ala.App. 596

LLOYD'S OF LONDON v. FIDELITY SECURITIES CORPORATION.

1 Div. 757.

Court of Appeals of Alabama.

Oct. 7, 1958.

Hamilton, Denniston, Butler & Reddick and Robt. R. Locklin, Mobile, for appellant.

Howell & Johnston and Irvin J. Langford, Mobile, for appellee.

CATES, Judge.

This appeal comes from a nonjury trial in the Mobile Circuit Court with judgment against Lloyd's of London for $495.58.

The action is on a 'nonrecording' policy, ¹ wherein certain underwriters at Lloyd's (appellant) undertook to indemnify Fidelity (appellee) against 'any loss direct' which it might sustain 'only insofar as [Fidelity would be] damaged through being prevented from' (a) obtaining possession, or (b) enforcing its rights (or both) with respect to property covered by a chattel mortgage or a conditional sales contract 'solely as the result of the failure of [Fidelity] duly to record the Instrument with the proper Public Officer.' (Italics supplied.) The plaintiff claimed a loss of $500 because of its failure to record a paper on a 1949 Ford automobile.

Lloyd's filed two pleas: (a) denial of Fidelity's allegations; and (b) 'that the instrument purchased by the Plaintiff * * * was and is a Chattel Mortgage, * * * that the alleged damage suffered by the Plaintiff, if any there was, did not result from its being prevented from obtaining possession * * * solely as the result of the failure * * * duly to record * * * with the proper Public Officer * * *'

There was a stipulation. On the issues of notice to the underwriters and the authority of B. F. Adams Company, as agents of the underwriters, oral testimony was taken in court.

The stipulated chronological sequence runs:

1.) July 16, 1953, Robert L. Jefferson gave a note due and payable the next day to Government Employees Insurance Company.

2.) November 27, 1953, Jefferson bought a 1949 Ford from Acme Motor Company for a total 'time price' of $946.36, $235 cash 'on or before delivery' and with a 'deferred balance' of $711.36, payable in eighteen monthly installments of $39.52 each, beginning January 2, 1954, the payment of the price being secured by an instrument labeled 'Conditional Sales Contract';

3.) December 23, 1953, Government Employees sued Jefferson on his note and on February 16, 1954, got judgment for $925.90;

4.) February 23, 1954, Government Employees recorded a certificate of said judgment in the probate office;

5.) June 2, 1954, Government Employees had execution issued;

6.) August 11, 1954, the sheriff, under said writ, levied on the car;

7.) August 12, 1954, Fidelity learned of the levy and notified B. F. Adams Company thereof that same day;

8.) September 23, 1954, Fidelity filed with Adams a 'filled in' claims form which Adams had furnished it;

9.) September 24, 1954, the attorneys for Lloyd's wrote Adams denying liability and requested that Adams so notify Fidelity.

10.) September 29, 1954, a bona fide buyer 'for value without notice of the claim of Fidelity' bought said car at a sale held by the sheriff under said levy. At the time of the sheriff's sale, the car was worth $434.72, and no one 'from or for Fidelity' attended said sale or proclaimed 'what interest Fidelity * * * had in the said automobile.'

Fidelity has filed two motions to dismiss this appeal. The first motion is on grounds of Lloyd's filing the transcripts of evidence and of the record proper too late in the circuit court and in this court, respectively.

There was no motion in the circuit court for a new trial. This being a civil case, the statute as to taking appeals quoted in McDaniel v. State, Ala.App., 96 So.2d 319, does not apply. The corresponding statute for civil cases is in Code 1940, T. 7, § 766, which reads in pertinent part:

'Any appeal taken * * * shall be shown in the following manner: * * * (b) By giving security for the costs of the appeal to be approved by the clerk * * *.'

Thereafter, under § 768, the clerk begins preparation of the transcript of the 'record' which includes the original of the transcript of the 'evidence' if filed, Code, P.P.Supp., T. 7, § 827(1b).

Judgment came February 8, 1957. 'Notice of appeal' with waiver of citation was filed August 2, which was also the date on which security for costs was filed with the circuit clerk.

The filing of this security dates the appeal as taken on August 2, 1957, § 766(b), supra; Danley v. Danley, 263 Ala. 390, 82 So.2d 534.

The circumstance that seems to have prompted Fidelity to move to dismiss was the fact that the transcript of the testimony (or 'evidence') was 'filed' by the court reporter (with notice to counsel thereof) with the circuit clerk on May 16, 1957.

On August 2, 1957, the circuit clerk endorsed this transcript 'Refiled August 2nd 1957.' This endorsement Fidelity contends was surplusage and hence a nullity.

However, from a reading of the various statutes consequent upon the abolition of bills of exception at law, as here (P.P.Supp., and 1957 Noncum.Supp., Code 1940, T. 7, § 827(1), et seq.), together with T. 7, § 769, it is clear that the court reporter's filing of a transcript of testimony with the clerk of the trial court is not contemplated by law except in the event of an appeal. If a lawyer wants one for motion for new trial that is a private matter between him and the reporter.

The reporter is entitled to be assured of his fee under the statute, § 827(2), supra; and, moreover, he is not required to commence transcription until the appeal has been perfected and unless he has been notified to transcribe within five days of appeal, § 827(1), second sentence. See Wheeler v. Alabama National Bank of Montgomery, 262 Ala. 36, 76 So.2d 679.

The appeal being August 2, 1957, the 'filing' or depositing of the transcribed testimony at an earlier date was a matter neither required nor regulated by statute or court rule, and, accordingly, should not begin the running of the period to get the record to the appellate court under revised Appellate Rule 37, Code 1940, Tit. 7 Appendix (263 Ala. xxi). We find no conflict with Bates v. Rentz, 262 Ala. 681, 81 So.2d 349. The motion is overruled.

Fidelity has, for alleged deficiencies in the assignments of error, also alternatively moved to strike Lloyd's assignments and to dismiss.

The first assignment reads:

'The Court erred in its judgment of February 8, 1957 (Transcript pages 5 and 6) in ordering and adjudging that the Plaintiff have and recover of the Defendant the sum of Four Hundred Ninety-five and 58/100 Dollars ($495.58), the amount of damages as so assessed by the Court, and all court costs in this cause created.'

Fidelity claims this is too general a specification. However, in Morgan Plan Co. v. Accounts Supervision Co., 34 Ala.App. 457, 41 So.2d 424 (also a nonjury case), we held such an assignment is good to raise the sufficiency of the evidence.

As to assignments 2, 3, 4, and 5, Fidelity says Lloyd's is barred to question the sufficiency of the evidence because a new trial was not moved for below. A motion for a new trial is not a condition precedent to appellate review as to whether or not the plaintiff's evidence makes out a scintilla. See Code 1940, T. 7, § 260 (second and third sentences); Browne v. Giger, 221 Ala. 176, 128 So. 174.

The sixth assignment, based on the failure of complaint to state a cause of action, is available even though no demurrer was made to the complaint. Louisville & N. R. Co. v. Williams, 113 Ala. 402, 21 So. 938; Chandler v. Price, 244 Ala. 667, 15 So.2d 462; Birmingham Electric Co. v. Echols, 33 Ala.App. 234, 32 So.2d 374.

Fidelity says the seventh assignment, relating to admission of testimony after objection, is bad because no exception was taken at the time of the trial court's ruling on Lloyd's objection. Act No. 44, approved April 1, 1955 (1955 Acts p. 150), pertinently provides:

'Exceptions to rulings or any order or orders of the court are unnecessary and * * * it is sufficient that a party, at the time the ruling or order * * * is made or sought, makes known to the court the action which he desires * * * or his objection to the action of the court and the grounds * * *.'

This new statute also applies to the eighth assignment.

In view of the remittitur provisions of Code 1940, T. 7, § 811, a motion for new trial is not required as a prelude to an appeal because of an excessive award of damages, where the judge has, as here, fixed the amount, City of Anniston v. Douglas, 250 Ala. 367, 34 So.2d 467.

The foregoing discussion fits the other grounds of Fidelity's motion to strike the assignments of error. We deny the motion and proceed to consider the cause on the merits.

The insuring agreement is not of a broad form (e. g., Cook v. Continental Ins. Co., 220 Ala. 162, 124 So. 239, 65 A.L.R. 921) with exclusions operating to restrict the scope of a risk expressed in general terms: on the contrary, the risk here lies in Fidelity's being prevented from obtaining possession or enforcing its rights solely because it failed to record.

With respect to third parties, without actual notice, recording confers on a chattel mortgage attributes different from those attending a recorded conditional sales contract.

Code 1940, T. 47, § 123, reads in part:

'Conveyances of personal property to secure debts, * * * are inoperative against creditors * * * without notice, until recorded, * * *.' (Italics supplied.)

Section 131 (ib.) reads pertinently:

'All other contracts for the conditional sale of personal property, by the terms of which the vendor retains the title until payment of the purchase money and the purchaser obtains possession of the property, * * * are as to such condition void against * * * judgment creditors without notice thereof, unless such contracts are in writing and recorded * * *.' (Italics supplied.)

Alabama nominally classifies itself as a 'title' state, i. e., a mortgage passes title to the mortgagee. Hence, the necessity for our defeasance stat...