Meriwether v. Crown Inv. Corp., 6 Div. 879

Citation268 So.2d 780,289 Ala. 504
Decision Date29 September 1972
Docket Number6 Div. 879
PartiesSherron L. MERIWETHER, etc., et al. v. CROWN INVESTMENT CORPORATION, a corporation, et al.
CourtSupreme Court of Alabama

Jack R. Evans, John A. Owens, Tuscaloosa, guardian ad litem for David L. Meriwether and Sharon Maria Meriwether, for appellants.

McQueen, Ray & Allison, Tuscaloosa, for appellees.

McCALL, Justice.

This is an appeal from the Circuit Court of Tuscaloosa County, Alabama, in Equity, wherein, pursuant to a jury verdict, a final decree in a declaratory relief proceeding was rendered in favor of the complainants, Crown Investment Corporation (Crown) and the First National Bank of Tuskaloosa, as trustee of the Gulf States Paper Corporation's Salaried Employees Pension Trust (First National), both appellees in the case. Title 7, § 164, Code of Alabama, 1940, provides for a jury trial in these suits, pursuant to the practice and proceedings in such court in which the cause is heard. In chancery, except when a trial by jury is given by law, such a trial is not authoritative and binding on the court, but is largely advisory. Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234; Hill v. Lindsey, 223 Ala. 550 137 So. 395; § 322 of Tit. 7, Code of Alabama, 1940.

The bill of complaint, as amended, seeking declaratory relief, alleges that the respondents, Sherron L. Meriwether and her to minor children, David L. Meriwether and Sharon Maria Meriwether, have represented that two stock certificates, each for 2500 shares of capital stock in Crown, were issued to respondent Sherron L. Meriwether, as custodian for each child, respectively, and it prays to have these stock certificates declared invalid. Respondent Sherron L. Meriwether holds the certificates in question as custodian for her two minor children under the Alabama Uniform Gifts to Minors Act. The ultimate issue involved the validity of the two certificates (2500 shares each). The advisory jury found that these two stock certificates were not valid, and the lower court entered its final decree in accord with this jury finding. This appeal followed.

It is not necessary for a complete understanding of this case that the facts be set out in detail. While pertinent factual matters will be set forth in conjunction with the appellants' contentions, where necessary, we observe that the facts of this case are in hopeless conflict. They relate among other matters to conflicting chains of title to the shares of stock in question, evidenced by two separate sets of stock certificates, which passed through different successive owners. Ultimately, one chain passed into the complainant First National Bank of Tuskaloosa, as trustee, one of the appellees, and the other, into Mrs. Meriwether, as such custodian, who with her two minor children are appellants on this appeal.

Two briefs have been filed for the appellants in the case, one for the appellant, Mrs. Meriwether, and another for her two appellant minor children. These briefs overlaps as to some, but not all, contentions.

Our attention is directed first to Mrs. Meriwether's assignments of error, numbers three and four, respectively, which recite: '3. The Court erred in overruling the objection of the Respondents to the following question propounded by the solicitor for the Complainants to the witness, Mr. Scott Black, (TR. 119): 'All right, sir. I will ask you, Mr. Black, if that book (the corporate minute book) contains minutes of the corporators meeting on December 30, 1963?"; and '4. The Court erred in overruling the objection of Mr. Owens, the Guardian ad Litem for minor respondents, which objection is stated as follows (TR. 134): 'All right. Well, Your Honor, we object, because I don't think he can show that they are business records kept in the normal course of business." The minor appellants' related assignments of error are numbered 1, 4, and 5, and take the point that the admission of complainants' exhibit number nine, i.e., the minute book of Crown, was erroneous.

As to appellant Mrs. Meriwether's assignment of error number three, we note that her objection came after the witness had answered the question. The lower court then overruled the objection, and there followed no motion to exclude, or further objection. The rule is that objections to questions, the answers to which have already been received in evidence, come too late. There was no error in overruling this appellant's objection to the stated question. Coker v. Ryder Truck Lines, 287 Ala. 150, 249 So.2d 810; First National Bank of Birmingham v. Brown, 287 Ala. 240, 251 So.2d 204; Mobile City Lines, Inc. v. Hardy, 264 Ala. 247, 86 So.2d 393.

Nor was there error in admitting the minute book of Crown in evidence, notwithstanding the book in question contained entries dating back to December 30, 1963, and the witness testified that he had not seen the book prior to February, 1966. The appellants' contention is that the witness cannot prove the entries in the book made prior to the latter date, and as a consequence, the minute book was not properly authenticated and testimony from it was not admissible.

This court stated the following in McMillan v. Aiken, 205 Ala. 35, 45, 88 So. 135, 144, with reference to the admissibility of corporate minutes into evidence:

'The records of a corporation, including its minutes or other record of the acts of its incorporators, stockholders, members, directors, or trustees, are generally admissible as prima facie evidence in favor of and against the corporation and its stockholders or members 'on questions relating to the creation and organization of the corporation, performance of charter or statutory requirements, corporate proceedings after organization, and other like matters.' Terry v. Birmingham Nat. Bank, 93 Ala. 599, 608, 9 South. 299, 30 Am.St.Rep. 87; Bank, etc., v. Comegys, 12 Ala. 773, 46 Am.Dec. 278; Jones, Adm'r, v. Trustees Florence W. Univ., 46 Ala. 626; Duke v. Cahawba Nav. Co., 10 Ala. 82, 44 Am.Dec. 472; Mayor, etc., v. Wright, 2 Port. 230; 2 Cook on Corp. (6th Ed.) § 714, note 5, pp. 2226, 2227; 14 Corp.Jur. pp. 376, 377; 17 Cyc. 401; Highland T. Co. v. McKean, 10 Johns. (N.Y.) 154, 6 Am.Dec. 324; Vawter v. Franklin College, 53 Ind. 88; 12 Cent.Dig.Corp. § 118; 20 Cent.Dig.Ev. §§ 1400, 1352; 46 Cent.Dig.Trial, § 98; Angell & Ames on Corp. § 506. * * *'

It is likewise the rule with respect to the admissibility of a corporate stock certificate book. See Davis v. Lime Cola Bottling Works, 18 Ala.App. 562, 564, 93 So. 328, 331, where the court said:

'* * * This stub was relevant as tending to prove that the certificate of stock had been issued to appellant. The evidence showed it was the stock certificate book kept by appellee company, and the handwriting was that of one of the two officers of the company at the time it purports to have been written. 4 Thompson on Corporations (2d Ed.) § 3519, p. 123, states:

"The stub of a book from which certificates have been detached has been held admissible as evidence of the issue of the stock'--citing Weber v. Fickey, 47 Md. 196.

'And in Oden v. Vaughn, 204 Ala. 451, 85 South. 784, the Supreme Court held:

"A stock book is the evidence of ownership and the right to benefits and liability as such."

True, the corporate record book must be properly identified and sufficiently authenticated in order to lay a preliminary foundation for its admission into evidence. We think that this was done. The book was identified by the corporate secretary as being the official record of the minutes of the meetings of the corporation which was delivered to him as such when he became secretary by George Meriwether, one of the directors, and he testified that as secretary he accepted the book as the official minute book of Crown. There was testimony also, on direct and voir dire examination, that the signatures of the corporate officers, who signed the corporate minutes contained in the book, were familiar to the witness and were recognized by him as being the signatures of those corporate officers who purportedly signed the minutes. After he became corporate secretary the witness further testified that he kept the same minute book as such, and as such officer he entered the corporate minutes therein in the regular course of the corporate business, it being the regular course of the corporate business to make such record at the time of the event or act recorded, or soon thereafter. In our opinion, this testimony was sufficient to show that the tendered book was a record of original entry, made in the regular course of the corporate business and that it was the regular course of the business to make such record at the time of the act, transaction, occurrence, or event recorded, or within a reasonable time thereafter. The lack of personal knowledge by the entrant or maker may be shown to affect the weight of the admitted record, but after the foundation is laid as outlined, the lack of personal knowledge does not affect its admissibility. The phrase 'lack of personal knowledge' in the statute, Tit. 7, § 415, Code of Alabama, Recompiled 1958, has been held to mean lack of personal knowledge on the part of the entrant as to the truth of the matter stated in the entry. Mitchell v. City of Mobile, 244 Ala. 442, 13 So.2d 664; Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378; Law of Evidence in Alabama, McElroy, 2d Ed., Vol. 2, § 254.01(4), p. 255.

There is no merit in Mrs. Meriwether's assignment of error four, nor in assignments of error one, four and five of the appellant minors.

The appellant, Mrs. Meriwether, moved to exclude the evidence of the appellees on the ground that they had not made out a prima facie case. The lower court, in overruling this motion, stated: 'Well, the Court thinks otherwise, and overrules your motion to exclude. So, proceed.' Mrs. Meriwether contends that in making the above quoted comment, rather than simply overruling the motion, the lower court in effect...

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