R.L. Parsons Lumber & Mfg. Co. v. Farrior

• Decision Date: 14 April 1932
• Docket Number: 8 Div. 296.
• Citation: 141 So. 696,225 Ala. 61
• Parties: R. L. PARSONS LUMBER & MFG. CO. ET AL. v. FARRIOR ET AL.
• Court: Alabama Supreme Court

141 So. 696

225 Ala. 61

R. L. PARSONS LUMBER & MFG. CO. ET AL. v. FARRIOR ET AL.

8 Div. 296.

Supreme Court of Alabama

April 14, 1932

Rehearing Denied May 26, 1932.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action on promissory notes by J. W. Farrior and W. L. Farrior partners under the names of J. W. & W. L. Farrior and Company, against the R. L. Parsons Lumber & Manufacturing Company and others. From a judgment for plaintiffs defendants appeal.

Corrected and affirmed.

Tennis Tidwell, of Decatur, for appellants.

Lynne &amp Lynne, of Decatur, for appellees.

KNIGHT J.

Plaintiffs (appellees) sued the defendants, R. L. Parsons Lumber &amp Manufacturing Company, a partnership, and R. L. Parsons and Carolyn C. Smith, the partners, individually, on six promissory notes, executed to plaintiffs by the defendants under their tradename of R. L. Parsons Lumber & Manufacturing Company. The first note was executed on December 16, 1929, and the other five during the early part of the year 1930. The dealings between the plaintiffs and defendants covered a period of several years. The suit was filed in the circuit court of Morgan county on April 15, 1930, and on the next day the plaintiffs caused to be issued out of said court a writ of garnishment, in aid of the suit, directed to and served upon Benton Turrentine, as clerk of the circuit court of Limestone county, who, as such clerk, was supposed to be indebted to defendants, or to have money or effects belonging to defendants in his possession, or under his control.

On May 8, 1930, the said garnishee made answer to the writ, admitting an indebtedness to defendants, at the time of filing his answer, of $900.76. On May 9, 1930, the defendants, under the provisions of section 8063 of the Code, gave bond and collected the money from the garnishee. This bond followed the terms of said statute in all respects.

The defendants, in the main suit, filed numerous pleas, including pleas of want of consideration, failure of consideration, and payment. The judgment entry recites that issue was joined by plaintiffs on each of the pleas, "separately and severally, with leave to give in evidence any matters that would constitute a good reply to said pleas, if well pleaded."

There was verdict for plaintiffs for the sum of $1,724.44, and judgment accordingly. This judgment was rendered on December 2, 1930, and at the conclusion of this judgment entry there follows, under date of December 3, 1930, judgment ascertaining and adjudging that the garnishee was indebted to the defendants, as of date May 8, 1930, in the sum of $900.76, "and that said amount shall bear interest from said date." The court then proceeded: "It is therefore ordered and adjudged by the court that the plaintiffs have and recover of the defendants and of their sureties on said (garnishment) bond, viz.: R. G. Cortner and Clara A. Cortner, the sum of $942.00, together with the cost of the garnishment."

It is insisted, first, by appellees that the judgments are separate, each final and supporting an appeal, and that both cannot be brought up for review by one appeal. In support of this contention appellees cite the case of Decatur Land Co. v. City of New Decatur, 198 Ala. 293, 73 So. 509. This case dealt with a single appeal taken to the circuit court by a landowner from separate improvement assessments made by the city council of the city of New Decatur against each lot, as the statute required. The circuit court, on motion of the city, dismissed the appeal. The judgment of the circuit court was here affirmed, and this court, in that case, observed: "The doctrine upon which this ruling was rested is fully set forth in Mobile Imp. Co. v. Stein, 158 Ala. 113, 115, 116, 48 So. 368, 17 Ann. Cas. 288, Fulton v. State,

170 Ala. 69, 54 So. 165. It is that two or more distinct judgments or decrees, each of which will support an appeal, cannot be united in one appeal. While this rule was announced and applied to a review sought by appeal to the Supreme Court, it is equally applicable to appeals authorized from separate assessments of distinct lots by municipal bodies in the exercise of their powers with respect to public improvements within their jurisdictions."

In the case of Mobile Improvement Co. v. Stein, supra, there was one appeal to this court, which sought to have this court, on that appeal, consider six separate and distinct judgments, in six separate and distinct forcible entry and detainer cases, to recover of the defendant six distinct parcels of land.

In the case of Fulton v. State, supra, the defendant had been convicted under two separate indictments. Two judgments were entered against him, but only one appeal was taken, which included both cases. The appeal was here dismissed upon the authority of Mobile Imp. Co. v. Stein, supra.

In the case of Kelly v. Deegan, 111 Ala. 152, 20 So. 378, 379, in an opinion written by Chief Justice Brickell, this court held, "Two distinct decrees-the decree confirming the sale of the real estate, and the subsequent decree of dismissal of the petition of the appellant-cannot be joined, and by a single appeal introduced into this court for review." But the court proceeded to say: "There has been no objection taken to the appeal. If an objection had been made, as matter of right, the certificate of appeal was amendable by the appellant, so as to present either decree, as its subject-matter, for revision."

The case of United States F. & G. Co. v. Benson Hdw. Co., 222 Ala. 429, 132 So. 622, also discusses the question, and holds, as a general proposition, that two separate judgments, decrees, or orders cannot be brought up for review by one appeal, when parties are not the same.

Had the appellees made proper motion to dismiss the appeal, it may be, though we do not decide the point, that his motion would be well taken, but no such motion was made, and the insistence is made for the first time in brief filed after the submission. The appellants, if such motion had been made, could have amended the certificate of appeal so as to present either judgment as the subject matter for revision. This was expressly so held in the case of Kelly v. Deegan, supra. In this state of the record, we will not dismiss the appeal, even if it were held to present two separate judgments for review.

It is insisted by appellants that the court committed reversible error in charging the jury, at the written request of the plaintiff: "I charge you that where the maker of a promissory note agrees with payee that if the payee will extend the time of payment to some future date, he will pay the same at the time so stipulated, such promise of the maker constitutes a new contract, binding in law and capable of enforcement, though the maker may have a good defense to the original note before the renewal under such agreement, either because of want of consideration or failure of consideration."

In the case of McCormick Harvesting M. Co. v. Yoeman, 26 Ind.App. 415, 59 N.E. 1069, it is held: "It is the settled law in this state that where the maker of a promissory note agreed with the payee that, if the latter will extend the time of payment for a definite time, he will pay the same at the expiration of said period, and the time is so extended, such promise of the maker constitutes a new contract, binding in law, and capable of enforcement, though the maker may have had a good defense to such...