Powell v. Henry

• Decision Date: 14 June 1892
• Citation: 96 Ala. 412,11 So. 311
• Parties: POWELL v. HENRY ET AL.
• Court: Alabama Supreme Court

11 So. 311

96 Ala. 412

POWELL v. HENRY ET AL.

Supreme Court of Alabama

June 14, 1892

Appeal from circuit court, Marshall county; JOHN B. TALLY, Judge.

Detinue brought by Sam Henry & Co. against William Powell to recover the possession of certain chattels, to wit, one mule, a wagon, and several cows and calves, covered by a mortgage executed by the defendant to the plaintiffs. The complaint as originally filed, contained three counts,-one of detinue one in debt, and a special count for attorneys' fees. The second and third counts were subsequently dismissed, and the cause was tried up on the count in detinue. The defendant originally pleaded the general issue, payment, nil debit, and, fourth, a special plea that the suit had been prematurely brought. The plaintiffs demurred to the fourth plea as originally filed, and the court sustained the demurrer. The defendant amended said plea, and the court again sustained a demurrer thereto as amended. Upon the defendant amending the second time his said fourth plea, the plaintiffs again demurred to it as amended, which demurrer was overruled by the court. The bill of exceptions recites that the defendant moved the court to strike from the file the demurrers interposed to his fourth plea, upon the grounds that, two trials of this cause having been had upon the pleas interposed, demurrer came too late. The court overruled this motion, and defendant excepted. The bill of exceptions also recites that the plaintiffs moved the court to strike from the file the defendant's fourth plea as amended the second time, on the ground that the defendant set out therein matters in abatement, and therefore improperly pleaded in bar. The court overruled this motion. Upon the trial of the case the plaintiffs introduced a note and mortgage executed to them by defendant, which was at that time due and unpaid. The defendant introduced much testimony in support of his said fourth plea, contending that, by an agreement between him and one Acker, agent of the plaintiffs, who took one of the mules conveyed in the mortgage, the defendant was granted an extension of time for the payment of his indebtedness to the plaintiffs, and that this suit was brought before the expiration of such extension. By agreement, issue was joined upon the plea of payment of the mortgage debt, and in proof of payment the defendant testified that he delivered several bales of cotton to the plaintiffs in payment of said mortgage debt; but about the price of this cotton there was conflict the defendant contending that two of the bales of cotton brought more than the plaintiffs allowed them. Upon the introduction of Lewis Powell as a witness for the defendant and after testifying that he was the father of the defendant, he further testified. "I remember that I went to Gadsden with the defendant about December 20, 1886, with two bales of cotton that the defendant told me was his prize cotton." Upon the court's sustaining the plaintiffs' motion to exclude this statement as to what the defendant told said witness, the defendant duly excepted. The other rulings upon the evidence are sufficiently shown in the opinion. There was a verdict and judgment for plaintiffs, and the defendant brings this appeal. Affirmed.

Brown & Street, for appellant.

Winston & Bilbro, for appellees.

MCCLELLAN J.

The record of this cause in the court below, as the same is copied and certified in the transcript before us, does not show that issue was ever joined on defendant's pleas prior to the interposition of the demurrers to said pleas which were filed on the 4th of March 1891. The joinder of issue is a fact which must appear of record in the primary court, and will not be at all considered here, if brought to our attention only in a bill of exceptions, which, though a part of the record of the cause in the court for the purposes of appeal, is no part of the record in the court below. Similarly, a motion to strike from the file a demurrer is itself a part of the pleadings in the cause, constitutes a part of the record proper of the primary court, and must be brought here as a part of the transcript of that record, and not as a mere statement of the presiding judge embodied in a bill of exceptions. No such motion appears from the record of the circuit court as certified in this transcript. For these reasons-that we are not advised in the only way in which the fact could be brought to our knowledge that issue had ever been joined on defendant's pleas before they were demurred to, or that any motion was made to strike the demurrers from the file on the ground that issue had been joined and not withdrawn-we are not called upon to review the action of the trial court in denying the motion. Indeed, this alleged ruling itself could only be shown by the record, which it is not, and could not be revised if made to appear here, as the fact is, only by the bill of exceptions. Beck v. West, 91 Ala. 312, 9 South. Rep. 199; Powell v. State, 89 Ala. 172, 8 South. Rep. 109; Pendry v. Shows, 87 Ala. 339, 6 South. Rep. 341; Chandler v. Chandler, 87 Ala. 300, 6 South. Rep. 153; Efurd v. Loeb, 82 Ala. 429, 3 South. Rep. 3; 3 Brick. Dig. p. 78, § 7; Id. p. 405, § 18.

2. The whole purpose and scope of defendant's fourth plea in its original form, and as twice amended, manifestly was to present the issue whether, for a valuable consideration, the maturity of plaintiff's claim had not, by agreement, been extended beyond the date at which this suit was instituted to enforce it, and the plea in each of its successive forms sought an abatement of the action on the ground that it had been prematurely brought. All the evidence which could have been offered under the plea, as originally filed or as first amended, was equally admissible, and in fact adduced, under the form which was given it by the last amendment. Not only so, but any advantage to which defendant was entitled on the facts proved was equally available to him under the issue finally made up by joinder on this plea as amended the second time. It is clear, therefore, that no injury resulted to him from the action of the trial court in sustaining demurrers to the original and first amended fourth plea; and, whether that action were abstractly sound or not, it cannot be made the basis of a reversal of the judgment. If error, it was without injury. Owings v. Binford, 80 Ala. 421; Rake v. Pope, 7 Ala. 161; Goggin v. Smith, 35 Ala. 683; Mitcham v. Moore, 73 Ala. 542; Oliver v. Insurance Co., 82 Ala. 417, 2 South. Rep. 445; Insurance Co. v. Copeland, 86 Ala. 551, 6 South. Rep. 143; Manning v. Maroney, 87 Ala. 563, 6 South. Rep. 343; Insurance Co. v. Copeland, 90 Ala. 386, 8 South. Rep. 48; Railroad Co. v. Davis, 91 Ala. 487, 8 South. Rep. 552; Bolling v. McKenzie, 89 Ala. 470, 7 South. Rep. 658; Capital City Water Co. v. National Meter Co., 89 Ala. 401, 7 South. Rep.419; Calhoun v. Hannan, 87 Ala. 277, 6 South. Rep. 291.

3. The amount of defendant's indebtedness on the mortgage under which plaintiffs claimed title to the property sued for was necessary to be proved to enable the jury to return a finding in respect thereto, as required by section 2720 of the Code. This indebtedness was also put in issue by the plea of payment, which, had it been established, would have prevented a recovery by plaintiffs. James Henry, a member of the plaintiff partnership, testified as to the gross amount of indebtedness, and as to payments which had been made on it. As to the former, his testimony was that the items constituting plaintiffs' claim were charged up on the books of the firm; that he had personal knowledge of several of the items of said account, but not all of them; that he had personally called over the account with Powell, the defendant, and showed him the total thereof, and no objection to its correctness was made by Powell; and that he (witness) knew "the amount of Powell's account from having his memory refreshed by an examination of the books of the firm and from having called over the account to Powell, and showing him the amount, and his not denying its correctness." This evidence was sufficient, we do not doubt, to establish the prima facie correctness of the statement of Powell's account as it appeared on plaintiffs' books. At the trial,...