Rice v. Westcott

• Decision Date: 08 January 1896
• Citation: 18 So. 844,108 Ala. 353
• Parties: RICE v. WESTCOTT.
• Court: Alabama Supreme Court

18 So. 844

108 Ala. 353

RICE v. WESTCOTT.

Supreme Court of Alabama

January 8, 1896

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Suit by Sam. H. Westcott against Alex. Rice. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is a suit for the recovery of the statutory penalty of $200 for failing to enter satisfaction on the margin of a record of a judgment, after the same had been satisfied, and was brought under the provisions of the third section of the act of the legislature of Alabama, approved February 28, 1887, entitled "An act to provide for the registration and lien of judgments and decrees for the payment of money." Acts 1886-87, p. 99, as the same was amended by Acts 1888-89, p 60. The appellee was the plaintiff in the city court, and his complaint, which was filed January 11, 1895, averred, in substance, that on the 9th of March, 1893, the said Rice recovered a judgment against the said Westcott in the city court of Montgomery, which is a court of record, for $161.60 damages and $7.10 as costs, and said Rice filed in the office of the judge of probate of Montgomery county a certificate of the clerk of said city court of Montgomery, showing the court which rendered said judgment, the amount and date thereof and the name of the attorney for the plaintiff in said suit which certificate was registered by the probate judge of Montgomery county, Ala., in Record Book No. 1 of Liens Judgments, and Decrees, showing the date of filing and name of owner of said judgment. The complaint also averred that "said certificate was in due and legal form, and entered in the book kept for such purposes"; that on the 14th of September, 1894, said Westcott paid said judgment in full and Rice gave him a receipt in full, and on the 29th day of September, 1894, said Westcott "requested said Rice, in writing, to enter the fact of payment and satisfaction on said judgment and record thereof"; and that, notwithstanding said request, said Rice, for more than three months after such request, wholly failed to make such entry, and thereby incurred the penalty of $200. To this complaint defendant, Rice, interposed a demurrer, filed March 5, 1895, the first ground of which is, in substance, that the complaint shows that the action is brought under the provisions of the act of the general assembly of Alabama, approved February 26, 1889, entitled "An act to amend an act entitled 'An act to provide for the registration and lien of judgments and decrees for the payment of money,' and the act of which the foregoing is amendatory," and neither of said acts contains any express penalty for the omission charged against the defendant. Rice, by the complaint in this cause. The second ground of demurrer is that the act under which the complaint is framed does not clearly express in its title that the subject of the said act is to impose any penalty for the failure of any person to perform any of the acts required or duties required therein. The third ground of demurrer is that the statute under which this suit is brought is unconstitutional, because said statute is violative of section 2, art. 4, of the constitution of Alabama, in that it undertakes to extend the provisions of certain laws by reference to their title merely, and does not re-enact and publish the same at length. The defendant, Rice, also made a motion, filed March 5, 1895, to strike the complaint from the file, because it did not show any cause of action against the defendant. These demurrers and the motion to strike the complaint from the file were overruled. Under the opinion of the court on the present appeal, it is unnecessary to set out the evidence and the rulings thereon, as...