Morton v. Clark
| Decision Date | 12 May 1914 |
| Docket Number | 543 |
| Parties | MORTON et al. v. CLARK. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 3, 1914
Appeal from Circuit Court, Lamar County; Bernard Harwood, Judge.
Assumpsit by B.T. Clark against J.E. Morton and others. From a judgment for plaintiff, defendants appeal. Affirmed.
The action was upon a note which, in the amended complaint, it is alleged had been transferred in writing, and is now the property of the plaintiff, and that he had no notice of the defense in said note, etc. Mrs. Hattie Morton, one of the defendants, filed two pleas: First, that the note was executed by her as surety for her husband, and, second, that the note was the debt of the husband, and that she was not directly or indirectly liable for same, but signed it as surety for her husband. J.E. Morton set up that he was induced to execute the note or instrument through misrepresentations of its nature and contents by one Stone the original payee herein, which representations were material, and were relied on, etc. The appeal seems to have been taken by Hattie and J.E. Morton, and not by Cobb, the other defendant. The assignment of errors are by J.E. Morton and Hattie Morton jointly, without any order of severance.
Water Nesmith and Walter L. Thompson, both of Vernon, for appellants.
J.C. Milner, of Vernon, and John S. Stone, of Birmingham, for appellee.
The lack of support for the contention made in the brief of the counsel for the appellants that "the court erred in overruling the demurrers to the complaint, because it was necessary for said complaint to aver that the said note was transferred in writing," is apparent, in view of the facts that the demurrer which was overruled was the one to the complaint as it was amended, and that the amended complaint specifically averred that the note sued on was duly transferred and assigned in writing by the payee to the plaintiff before maturity.
In dealing with the assignments of error based upon the action of the court in sustaining demurrers to pleas of the two defendants who are the appellants here, which pleas were separately filed and presented different matters of defense the brief of the counsel for the appellants by no means complies with the requirement of the rule of practice governing the preparation of a brief for the appellant. Civil Code, p. 1508, rule 10. Each ground of error is not "separately presented and numbered in proper order," as required by that rule. The rulings mentioned are dealt with all together, without any specification of the particular grounds upon which the several rulings are claimed to be erroneous. The grounds of the alleged errors have not been so pointed out as to cast upon the court the duty of reviewing the rulings so complained of. Thomas Fraser Lumber Co. v. Henson, 4 Ala.App. 625, 58 So. 812. Besides, the assignment of errors is joint, and not several. It is plain that one defendant is not injured by the sustaining of a demurrer to a plea of another defendant in which the former did not join. A joint assignment of error cannot be sustained, unless the alleged erroneous ruling involved injury to all joining in the assignment. Lehman et al. v. Gunn et al., 154 Ala 369, 45 So. 620. It follows that none of the assignments of error last mentioned can be sustained.
The deposition of the plaintiff was not subject to suppression on either of the grounds stated in the motion made to that end. When the interrogatories were filed, the appellee (plaintiff below) nominated Florence Wylie, who resides at Tupelo, in the state of Mississippi, as a suitable person to be appointed commissioner to take his deposition. When the appellants filed their cross-interrogatories, they nominated John M. Witt, who resides at Tupelo, Miss., as a suitable person to act as commissioner. The commission issued by the clerk was addressed "to Florence Wylie and John M. Witt residing in Tupelo, in the state of Mississippi, or to such one or more of you as shall act herein." The deposition was taken, certified, and returned by the nominee of the appellants. The terms of the commission were such as to authorize the persons named as commissioners severally to take and certify the deposition. Under such a commission it is competent for either one of the commissioners to act without the other. New et al. v. Young, 144 Ala. 420, 39 So. 201. The authority relied on in this connection by the counsel for the appellants (Montgomery Street Ry. Co. v. Mason, 133 Ala. 508, 32 So. 261), does not support their contention. The commission which was before the court in that case appointed two commissioners "jointly to take the testimony of the witness." In the case at bar the deposition was taken and certified by the commissioner nominated by the appellants under a commission, issued in conformity with such nomination, which authorized him so to act alone.
A single assignment of error brings into question the action of the court in overruling motions of the...
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