Randall v. Wadsworth

• Decision Date: 20 December 1900
• Citation: 130 Ala. 633,31 So. 555
• Parties: RANDALL ET AL. v. WADSWORTH.
• Court: Alabama Supreme Court

31 So. 555

130 Ala. 633

RANDALL ET AL. v. WADSWORTH.

Supreme Court of Alabama

December 20, 1900

Appeal from probate court, Bibb county; W. L. Pratt, Judge.

Action by J. B. Randall and others against J. B. Wadsworth. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Phares Coleman, for appellants.

S. D Logan and Vande Graaff & Vernon, for appellee.

DOWDELL J.

The appellants, who are sureties on the bond of one Joseph Powell, guardian of one Henry Powell, a minor, filed their petition for a supersedeas of an execution issued by the probate court of Bibb county on a decree rendered by said court upon the final settlement of said Joseph Powell, the said guardian, of his said guardianship. As grounds for a supersedeas, the petitioners aver and charge fraud in said settlement and in the procurement of said decree. The fraud charged consisted in an alleged false statement of his account by the said guardian, in that it failed to ask credit for certain items which the petitioners claimed he should have been credited with, and that in said false statement of his account for final settlement as such guardian J. B Wadsworth, respondent, who was appointed as successor to said Joseph Powell in the guardianship, acted and was in collusion with him. The respondent made answer to the petition, denying its allegations of fraud and collusion, and further setting forth what is averred in the answer to be a true statement of the facts. A trial was had, and upon the hearing a judgment was rendered by the court denying to the petitioners a supersedeas, and it is from this judgment the present appeal is prosecuted.

The first and second assignments of error relate to the rulings of the court on the pleadings. In the first, the overruling of petitioners' demurrer to respondent's answer to the petition is assigned. This assignment finds no support in the record, since no judgment of the court on the demurrer is shown. It has been repeatedly decided by this court that a mere recital in the record to the effect that "demurrer was overruled," or "sustained," is nothing more than a memorandum, wholly wanting in the essential elements of a judgment, and therefore insufficient to support an assignment of error based upon it.

The second assignment is based on the ruling of the court on motion to strike to certain pleadings. Rulings on motions to strike can be presented for review on appeal only by bill of exceptions. Motions of this character are usually oral, and form no part of the record as pleadings proper, and, although reduced to writing and copied into the record, cannot be considered as forming any part of the proceedings constituting the record proper in the court below. There is a similar motion, with a statement of the rulings thereon, to that here assigned as error, copied in the bill of exceptions, but no assignment of error is based on this; the assignment here being specifically directed to the motion and rulings thereon contained in the transcript as forming a part of the record in the trial court. Moreover, the exception upon which the assignment is based is without merit, as the petitioners asked, and were granted, leave, in lieu of the replications which were stricken, to amend their petition in regard to the matters set up in the replications in a manner to give them the benefit of any legal defense contained in said replications, which said amendment was subsequently voluntarily withdrawn by petitioners.

The third and fourth assignments of error are based upon the rulings as to the testimony of one J. F. Thompson, and are clearly wanting in merit. If any error was committed, it was subsequently cured, as this witness was withdrawn from the stand, and only testified after further search had been made by him for the papers in question.

Assignments numbered from 5 to 13, inclusive, relate to the introduction of secondary evidence, and may be considered together. The papers in question, on account of the loss of which the secondary evidence was offered, constituted a part of the file of the case being tried. The probate judge presiding at the trial was the proper custodian of these papers. He could not testify as a witness in a case which was being tried before him. Dabney v. Mitchell, 66 Ala. 495. He caused a search to be made in his presence by J. F. Thompson the son of his predecessor in office, who was shown to have assisted his father while probate judge, and to be familiar with the office. This was undoubtedly proper. After such search and a failure to find the missing papers, as shown by the record, we think a sufficient predicate was laid for the introduction of the secondary evidence, to the admission of which exceptions were reserved by the...