Martin Mach. Works v. Miller

• Decision Date: 17 June 1902
• Parties: MARTIN MACH. WORKS v. MILLER.
• Court: Alabama Supreme Court

32 So. 305

132 Ala. 629

MARTIN MACH. WORKS v. MILLER.

Supreme Court of Alabama

June 17, 1902

Appeal from circuit court, Choctaw county; Gesner Williams, Special Judge.

Action by the Martin Machine Works against F. J. Miller. From a judgment for defendant, plaintiff appeals. Reversed.

This was a statutory action of detinue, brought by the appellant the Martin Machine Works, against the appellee, F. J. Miller to recover the possession of an engine, boiler, and fixtures. The defendant pleaded non detinet, and by special plea set up that, after the purchase of the machinery sued for, the plaintiff and the defendant rescinded the contract of sale and plaintiff agreed to surrender to the defendant the notes given for the purchase of said machinery and to take back the machinery, but that, when plaintiff demanded the machinery it refused to surrender the defendant's notes. It was shown by the evidence introduced that the Progress Manufacturing Company sold to the defendant the machinery involved in this suit, and for the purchase price thereof took two notes executed by the defendant, each of which recited that it was given for the purchase price of the machinery, and stipulated that the title to said machinery remained in the Progress Manufacturing Company until the notes were fully paid, and that said notes were not paid. It was further shown by the evidence that the Progress Manufacturing Company had sold and conveyed all of its rights, franchises, property, and assets, including accounts, etc., to the plaintiff, the Martin Machine Works, and that the notes executed by the defendant were indorsed by the Progress Manufacturing Company to the Martin Machine Works. The other facts adduced in evidence necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the defendant, gave the general affirmative charge in its behalf, to the giving of which charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. The trial of this case was had on March 21, 1900. The bill of exceptions was signed, as recited, "in open court in term time," on March 28, 1900. The appeal bond was given on July 9, 1900. The citation of appeal was issued on May 6, 1901, and was executed on the same day. The certificate of appeal was signed by the clerk of the court on May 6, 1901. The transcript was filed in the office of the clerk of the supreme court May 11, 1901. The cause was submitted in the supreme court upon the merits, and on the motions to dismiss the appeal, and to strike out all the assignments of error upon the following grounds: (1) That the judgment was rendered more than two months before the appeal was taken. (2) That the transcript was not filed in the proper time. (3) Because the judgment was rendered by the circuit court in this cause on March 21, 1900, the citation of appeal was served on May 6, 1900, the appeal bond was approved on July 9, 1900, and yet the transcript was not filed in the supreme court until May 11, 1901,--more than 12 months after the appeal was taken.

W. F. Glover, for appellant.

Taylor & Elmore and C. R. Gavin, for appellee.

SHARPE J.

This appeal was taken in vacation to the supreme court term next following. The transcript was not filed within the time prescribed by law, but was filed before...