Polytinsky v. Johnston

• Decision Date: 10 April 1924
• Docket Number: 8 Div. 640.
• Citation: 211 Ala. 99,99 So. 839
• Parties: POLYTINSKY v. JOHNSTON.
• Court: Alabama Supreme Court

99 So. 839

211 Ala. 99

POLYTINSKY v. JOHNSTON.

8 Div. 640.

Supreme Court of Alabama

April 10, 1924

Appeal from Morgan County Court; W. T. Lowe, Judge.

Action by J. D. Johnston against A. Polytinsky, to recover damages for the conversion, wrongful taking, or the destruction of a lien upon a bale of cotton. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Wert &amp Hutson, of Decatur, for appellant.

Sample & Kilpatrick, of Hartsells, for appellee.

THOMAS J.

Counsel for appellant present several assignments of error raising kindred questions under the same argument. This they may do. Sovereign Camp v. Craft (Ala. Sup.) 99 So. 167. In effect, they are that reversible error was committed in admitting, over defendant's objection, and in refusing to exclude, evidence "regarding the books kept by appellant" (defendant) "and specifically that part showing a purchase" (of a bale of cotton) "from O. C. Hood." It is insisted that defendant's cotton book could not be looked to as tending to prove the alleged purchase of the bale of cotton from Hood, for the reason that defendant could neither read nor write. It was admitted that defendant could not read or write.

Defendant admitted that he kept a cotton book in which was entered each day's business in the names of the respective persons from whom he had purchased cotton, the amount, weight, and price paid therefor. Demand was made on defendant to produce his cotton book, and the failure or refusal to comply with such demand authorized secondary evidence of its contents, if the alleged contents be relevant and material evidence under the issue of fact being tried.

Plaintiff was permitted to testify that after the loss of the bale of cotton he went to defendant's place of business and was shown defendant's cotton book by his bookkeeper; that the book showed the purchase of the said bale of cotton from O. C. Hood on October 7, 1922, and the price paid therefor. The reason or predicate for the introduction of the evidence in question was thus stated by the plaintiff as a witness in his own behalf:

"The next morning I went back to defendant's place of business, and saw the defendant, A. Polytinsky, and told him that I saw on the books that he had bought a bale of cotton from O. C. Hood. The defendant, A. Polytinsky, went to his books, and his bookkeeper turned to the book which she had shown me, and showed him the item, and he said, 'Yes; I paid him for a bale of cotton on the 7th.' His bookkeeper turned to the same book which she had shown me, and gave Mr. Polytinsky this information. I then asked Mr. Polytinsky if he wanted to pay me for this cotton, stating to him that O. C. Hood owed me for rent. He said, 'No; I have bought and paid for it once, and I do not want to pay for it again.' I then told him that I would have to bring suit for it, and he said, 'All right, go ahead.' This book that the bookkeeper showed me was the same book that she referred to when Mr. Polytinsky asked her about buying Hood's cotton, and it was a cotton book in which was entered the names of the various parties from whom Mr. Polytinsky had bought cotton, and following each name was the amount of cotton purchased, the price paid for same, the date of the purchase, weight of the cotton."

The record then recites:

"The witness testified further: The books showed under date of October 7, 1920, 'O. C. Hood 1 B/c 550 lbs. $23.55......129.52."'

There was no error in admitting the secondary evidence in question. The entry of the purchase of a bale of cotton from Hood, contained in defendant's book entry and made the subject of this inquiry, amounted to, or was the basis of, the reasonable inference of an admission of a most solemn character of the res gestæ of the conversion, since the cotton book was kept by the direction of defendant. Britton v. State, 77 Ala. 202; L. & N. R. Co. v. McGuire, 79 Ala. 395; Gulf Red Cedar Co. v. Crenshaw, 188 Ala. 606-610, 65 So. 1010; 22 C.J. p. 889, § 1083, p. 891, § 1085. This evidence was not offered and admitted under section 4003 of the Code of 1907, but as an admission of the defendant, after inspection or reference to the cotton book through his bookkeeper, of the fact that he had purchased a bale of cotton from Hood of the amount and price indicated; and it was purchased from plaintiff's tenant Hood (as the other evidence tends to show), with a knowledge or notice of that tenancy for the year in which the cotton was grown.

The argument, in support of the assignment of error challenging the question "Does the defendant own land across the road from your farm upon which C. O. Hood lived in 1920?" and the answer, "He does," scarcely comes within the requirement of the rule. Johnson v. State, 152 Ala. 93, 44 So. 671; Republic, etc., Co. v. Quinton, 194 Ala. 126, 69 So. 604; Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158. However, we will say that testimony, with other evidence, was competent as a basis for the inference that defendant had notice that Hood was plaintiff's tenant during the year in question, and that therefore the bale of cotton purchased by defendant was subject to the superior title of the landlord, and that Hood might have had only a lien thereon. Crow v. Beck, 208 Ala. 444, 94 So. 580. This witness had testified that he was with Hood when defendant was looking at the cotton as it was upon Hood's wagon, when defendant asked Hood "if he still lived on Dr. Johnston's place," and that he was told that "he lived there this year." The question and answer were permitted in evidence as tending to show opportunity for knowledge of a former tenancy that was being extended to the time of the sale and was a part of the res gestæ of the sale and conversion of plaintiff's cotton.

If there is any evidence reasonably affording an inference adverse to the right of the party asking the general affirmative charge, or from which the jury might draw such adverse inference, such an instruction should not be given. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

It is insisted that the affirmative charge in question, "if you believe the evidence you will find for the defendant," is within the rule applied in Boshell v. Cunningham, 200 Ala. 579, 76 So. 937, and Goldstein v. Leake, 138 Ala. 573, 36 So. 458. However this may be, the charge was sought to be made to extend to all counts of the complaint, and will be so considered by us. It is immaterial whether Dr. Johnston's lien or right as landlord for rent and advances was evidenced by and in the form of notes and mortgage, or whether the cotton was or was not grown in Morgan county. The evidence showed that it was raised by Hood on the lands of plaintiff, who had the landlord's title or lien, and that Hood had lived on the same lands for some years, which was known by the defendant, or there was evidence from which this inference might be drawn; that defendant owned a farm or land adjacent to plaintiff's land, or across the road therefrom, and that when the defendant was negotiating

for the purchase of the cotton on the wagon he inquired of the tenant whether he still lived on plaintiff's land, and was informed that such was the fact. This was sufficient to put defendant on inquiry whether the cotton was plaintiff's; or such, at least, was the reasonable presumption of fact that the jury might draw from all the evidence. A jury question was presented.

It is further insisted in argument that the affirmative charge should have been given the defendant on the ground that the record shows the trial was in the Morgan county court at Hartsells, when the county site of that county is Decatur. Of this fact, and of the further fact that such court, having jurisdiction of such causes of action, was established for the geographic division of the county to be held at Hartsells, the court takes judicial knowledge (Hodge v. Joy, 207 Ala. 198, 201, 92 So. 171; Rodgers v. State, 50 Ala. 102; Lindsay v. Williams, 17 Ala. 229); that is to say, if the Local Act of 1919 (Acts, p. 194) is not subject to constitutional infirmity. It is hornbook law that courts must be held at the time (K. C., etc., Co. v. Randolph [Ala. Sup.] 39 So. 920; Walker v. State, 142 Ala. 7, 39 So. 242; Boynton v. Wilson, 46 Ala. 501; Simpson v. McDaniel, 42 Ala. 458) and place provided by law. Patton v. State, 160 Ala. 111; ^[1] 7 R. C. L. p. 992, § 21; 15 C.J. "Time," p. 877, § 223, and "Place," p. 895, § 264 et seq.

A judgment rendered by a court attempted to be held at a time or place not authorized by law is void for want of jurisdiction, and will not support an appeal; and an appeal taken therefrom will be dismissed. Patton v. State, 160 Ala. 111, 49 So. 809; Kidd v. Burke, 142 Ala. 625, 38 So. 241; Pickens v. Clark, 203 Ala. 544, 84 So. 738; Ex parte City Bank & Trust Co., 200 Ala. 440, 76 So. 372; Ex parte Branch & Co., 63 Ala. 383; State v. Thurman, 17 Ala. App. 656, 88 So. 61, certiorari denied in Ex parte State ex rel. Smith, Atty. Gen. (State v. Thurman), 205 Ala. 677, 88 So. 899.

The mere request for the affirmative charge by the defendant may not present for decision the question of the constitutionality of the Act of 1919 (Acts, p. 194) establishing the county court of Morgan county; the fact of its unconstitutionality being pressed upon the consideration of this court to prevent an affirmance of a void judgment requires that said act be examined for the constitutional infirmity pointed out in brief of appellant's counsel.

Provisions of the act of September 24, 1919 (Local Acts, pp. 194-201) were construed by this court in Thornhill v. Cowart, 205 Ala. 455, 88 So. 563, and it was declared that it did not "purport in terms to create a court in lieu of justices of the...