Moore v. Penn

• Decision Date: 18 December 1891
• Citation: Moore v. Penn, 10 So. 343, 95 Ala. 200 (Ala. 1891)
• Parties: MOORE ET AL. v. PENN ET AL.
• Court: Alabama Supreme Court

10 So. 343

95 Ala. 200

MOORE ET AL. v. PENN ET AL.

Supreme Court of Alabama

December 18, 1891

Appeal from circuit court, Tallapoosa county; JOHN MOORE, Judge.

Action by Moore, Marsh & Co. against Penn & Co. on an attachment of plaintiffs against Spinks Bros. Judgment for plaintiffs. Defendants appeal. Affirmed.

W D. Bulger, for appellants.

J M. Chilton, for appellees.

CLOPTON J.

Under an order for a certiorari, the clerk of the circuit court returned a transcript of the bill of exceptions as signed by the presiding judge, from which it appears that blank spaces were left, in which some papers used in evidence were to be copied by the clerk. Appellees thereupon moved to strike from the bill of exceptions returned in the original transcript two notes and a deed of assignment copied in two of the blank spaces, on the ground that they were not incorporated when the bill of exceptions was signed by the judge, and are not so identified as to authorize their insertion by the clerk in making up the record. The rule is well settled that the incorporation of any paper read, or offered to be read, in evidence in the bill of exceptions before it is signed, or such description by identifying features as to leave no room for mistake by the transcribing officer, is indispensable. Pearce v. Clements, 73 Ala. 256. It being conceded that there is not even a pretended description of the notes, and that the description of the deed of assignment is general and indefinite, the motion to strike them from the bill of exceptions is granted. The present proceeding is a statutory trial of the right of property to a stock of goods, levied on by an attachment sued out by the appellees against the estate of Spinks Bros., to which appellants interposed a claim. On the evidence, the court gave the affirmative charge in favor of plaintiffs.

The first objection urged to the charge is that the bill of exceptions, which purports to set out substantially all the evidence, does not show any proof that plaintiffs were creditors of Spinks Bros. at the time of the sale of the goods to claimants or at any other time. The objection is based on the fact that a blank space was left in the bill of exceptions signed by the judge, which is filled in the first transcript by the insertion of copies of an affidavit and attachment. On the settled rule that the corrected transcript returned in obedience to an order for certiorari must be regarded as the true and correct record, so far as there is any repugnance between the contents of the first and second records, it is insisted that the principle on which the notes and deed of assignment were stricken out should be extended so as to prevent the attachment from being considered, on this appeal, as a part of the evidence set out in the bill of exceptions; and that if the attachment be excluded there is no evidence that Spinks Bros. were indebted to plaintiffs. Whether there is any repugnancy between the contents of the two bills of exceptions depends on the question whether the description in the bill signed by the judge sufficiently identifies the affidavit and attachment to justify their insertion in the blank space. The proper issue on the trial of the right of property is an affirmative one on the part of plaintiffs, that the goods levied on are subject to the attachment, and a denial by the claimants. There was but one attachment issued and levied on the goods the same attachment mentioned in the affidavit and claim-bond made by the claimants, which is the foundation of the trial of the right of property and of the issue joined,-a part of the record. We are unable to see how any mistake could have been made by the transcribing officer. This is the certainty of identification required by the rule. If the attachment be regarded as a part of the bill of exceptions, it is sufficient evidence, on the trial of the right of property and for the purposes of such trial,...