Porter v. Watkins

• Decision Date: 20 April 1916
• Docket Number: 5 Div. 609
• Parties: PORTER et al. v. WATKINS.
• Court: Alabama Supreme Court

71 So. 687

196 Ala. 333

PORTER et al. v. WATKINS.

5 Div. 609

Supreme Court of Alabama

April 20, 1916

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Action by T.H. Watkins against C.L. Porter and others. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

James W. Strother, of Dadeville, for appellants.

Bulger & Rylance, of Dadeville, for appellee.

MAYFIELD J.

This was an action on a promissory note, against several defendants, among whom was one Porter, appellant. There was dismissal or abatement as to several defendants, on account of death, bankruptcy, etc.

Counsel for plaintiff, who appeared for the first time (the plaintiff, at previous hearings and trials, having been represented by other counsel), after asking orders for dismissal as to some of the defendants on account of death bankruptcy, etc., asked that the case be discontinued as to the defendant Porter, and the court announced that the order was granted; but, before any judgment or minute order to that effect was entered, counsel discovered that Porter had been served, and had defended on former hearings. The court, on motion of counsel, set aside the order of discontinuance and allowed plaintiff to proceed to trial against Porter.

There was no error in this action of the court. The first order had not passed beyond the control of the court, and, being taken on a mere oversight or mistake of counsel, the court properly allowed the case to proceed against Porter. No judgment or order to that effect was ever entered, and no error occurred on account of which Porter or any of the other defendants should be allowed to profit. There was therefore neither in fact nor in law a discontinuance as to Porter. There was no sufficient gap or chasm in the proceedings to amount to a discontinuance in law. The record proper shows no discontinuance. All that appears is in the bill of exceptions, and it shows that the final action of the court was to decline to allow or sanction a discontinuance, and to merely reverse a former ruling which was invoked by a mistake of counsel.

In Bouvier's Law Dictionary, a "discontinuance" in practice is to be "the chasm or interruption in proceedings occasioned by the failure of the plaintiff to continue the suit regularly from time to time as he ought." It is, in substance and effect, an abandonment of the moving party of his pending cause. Ex parte State, 71 Ala. 367. It has been many times decided by this court that official neglect or refusal of the clerk to perform the duties required of him will not operate a discontinuance. Wiswall v. Glidden, 4 Ala. 357; Drinkard v State, 20 Ala. 9; Harrall v. State, 26 Ala. 52; Brown v. Clements, 24 Ala. 354; Ex parte Remson, 31 Ala. 270; Glenn's Adm'r v. Billingslea, 64 Ala. 345.

While it is true that a discontinuance puts an end to the cause, yet, where a mere order or announcement has been made to that end, such order or suggestion may be changed or corrected during the term of the court at which it was originally made; and certainly so, where, as in this case, the two orders were practically simultaneous. Curtis v. Gaines, 46 Ala. 459.

The defendant testified to having made two payments, one of $125 and one of $5. He introduced a receipt for the first, and offered to prove the contents of the receipt for the latter; but the court declined to allow the proof, on the ground that the absence of the original was not sufficiently accounted for.

If the loss of a paper is relied on, to account for its nonproduction, the fact of its loss is not established without proof of diligent search where the paper is most likely to be found and the particular character of the search should be shown. Every reasonable effort which might have resulted in the production of the missing paper should be shown to have been made without avail, before secondary evidence can be received. McEntyre v. Hairston, 152 Ala. 251, 44 So. 417; Laster v. Blackwell, 128 Ala. 143, 30 So. 663; Boulden v. State, 102 Ala. 78, 15 So. 341; 6 Mayf.Dig. 336.

We are not prepared to say that the trial court was in error, but, if error there was, it was without possible injury. It was only a receipt offered to be proven; and the witness did in fact testify, without objection, as to everything proper for a receipt to contain. The receipt introduced was as follows: "Received of O.M. Porter, $125.00 on the amount due on his father's note.--Thad H. Watkins."

We quote from the same witness as follows:

"The Court: 'That $125.00 was in 1907?' Defendant's counsel replied: 'Yes, sir, in 1907.' Said witness further testified as follows: 'Five dollars and something, my son paid after that. That was paid in about ten or fifteen days after the receipt. That paid the balance on that note. I have not the receipt for that five dollars; my son has it, and it in here last summer was a year ago. My son is in Texas; it is not in my possession, my son has it; it is just like that."

He certainly could not have testified any more fully as to a mere receipt for five dollars.

The defendant Porter requested the giving of the following charges, "...