Morgan v. Embry

• Decision Date: 16 December 1919
• Docket Number: 7 Div. 546
• Citation: 17 Ala.App. 276,85 So. 580
• Parties: MORGAN v. EMBRY.
• Court: Alabama Court of Appeals

85 So. 580

17 Ala.App. 276

MORGAN v. EMBRY.

7 Div. 546

Court of Appeals of Alabama

December 16, 1919

Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.

Action by Eddie Embry against George H. Morgan for penalty for failure to enter partial payment on the margin of the record of a mortgage. Judgment for the plaintiff, and the defendant appeals. Affirmed.

Knox Acker, Dixon & Sims, of Talladega, for appellant.

Graves Embry and W.B. Harrison, both of Talladega, for appellee.

MERRITT J.

This court cannot say that the trial court improperly overruled the demurrers to the amended complaint for the reason that the demurrers nowhere appear in the transcript.

Replication No. 2 was subject to demurrer, but it was not subject to the demurrer interposed to it. The demurrers are general, and neither point out any defect in the replication.

The complaint contained two counts one for nonentry of partial payments, and the other for nonentry of total balance unpaid on the margin of the mortgage record. Refused charge No. 3 was inapt, in that it predicated a verdict for the defendant if the plaintiff did not sign or authorize to be signed a notice to "enter upon the margin of the mortgage record the total amount paid on said mortgage." This fact was not embraced within the issues of the case, and what is said in regard to the refusal to give charge 3 may also be said of the refusal to give charge B. The bill of exceptions does not purport to contain all of the evidence, and this court will presume any state of the evidence to support the trial court's action. 1 Enc.Digest Ala.Reports, 506, and authorities there cited. Moreover, the transcript does not contain the court's oral charge to the jury, and the statute expressly provides that the refusal to charge a correct statement of the law "shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge," and this court, in the absence of such oral charge, will indulge the presumption that the charges, if proper in themselves, were refused because the same rule of law had been "substantially and fairly" given to the jury in such oral charge. Southern Express Co. v. Malone, 16 Ala.App. 414, 78 So. 408; Lasby v. State, 16 Ala.App. 479, 79 So 153.

The affirmative charge as asked for should not have been given. It was improper in form. A.G.S.R.R. v. Bonner ...