Roney v. Dothan Produce Co.

• Decision Date: 10 May 1928
• Docket Number: 4 Div. 382
• Citation: 117 So. 36,217 Ala. 475
• Parties: RONEY v. DOTHAN PRODUCE CO.
• Court: Alabama Supreme Court

117 So. 36

217 Ala. 475

RONEY v. DOTHAN PRODUCE CO.

4 Div. 382

Supreme Court of Alabama

May 10, 1928

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Bill by the Dothan Produce Company against Mattie Roney and others to enforce a judgment lien. From a decree overruling her demurrer to the bill, the named respondent appeals. Reversed rendered, and remanded.

E.C Boswell, of Geneva, for appellant.

Mulkey & Mulkey, of Geneva, for appellee.

SOMERVILLE J.

The bill of complaint is filed for the purpose of enforcing a judgment lien on the lands of the respondent. The respondent's demurrer to the bill was overruled, and she appeals on the record.

The bill alleges:

"On July 14, 1927, complainant recovered a judgment in the circuit court, Geneva county, Ala., against Mattie Roney [the respondent] for $1,093.85, and $10.40 court cost, a certificate of which judgment signed by the clerk has been duly filed and registered in the office of the judge of probate of Geneva county, Ala., and therefore created a lien upon the property of the defendant."

The demurrer to the bill challenges the sufficiency of these allegations to show a lien under section 7874 of the Code the contention being that the bill must show the filing and registration of a certificate which actually--and not by mere inference or presumption--contains everything which the statute requires it should contain in order to create the statutory judgment lien.

Complainant's theory of the matter is that the law presumes that the clerk of the court who made the certificate did his duty and followed the requirements of the statute; and hence that it is not necessary to allege, as a matter of pleading, what recitals the certificate contained.

With respect to the sufficiency of this certificate, this court has required a very strict compliance with the terms of the statute, and, unless the certificate shows every feature of the statutory prescription, it is unavailing for the creation of the lien. Duncan v. Ashcraft, Adm'r, 121 Ala. 552, 25 So. 735; Edinburgh Am. Land, etc., Co. v. Grant, 152 Ala. 456, 44 So. 554; Conn v. Sellers, 198 Ala. 606, 73 So. 961; Ladd v. Smith, 209 Ala. 114, 95 So. 280; Morris v. Waldrop, 213 Ala. 435, 438, 105 So. 172.

The general rule of equity pleading is that "a bill must set forth a copy or aver the terms of an instrument vital to plaintiff's demand." 21 Corpus Juris, 403, § 424. See, also, Sprague v. Shields, 61 Ala. 428, 432; and McDonald v. Mobile Life Ins. Co., 56 Ala. 468. And in an action at law, claiming the statutory penalty for not entering on the record a partial payment made on a recorded judgment, the complaint was held insufficient, because it did not show that the recorded certificate contained the name of the owner of the judgment. Travis v. Rhodes, 142 Ala. 189, 194, 37 So. 804. It was there said, per Anderson, J.:

"This court held in Duncan v. Ashcraft, 121 Ala. 552 , that the omission of the name of the owner from the certificate rendered it insufficient to create a lien this requirement now omitted from the statute]; and we think in this case, that the complaint should aver facts sufficient to show that a lien existed in order to show a cause of action."

We think it is a sound rule of pleading that, in every case where a party's right in suit, pro or con, depends directly and primarily upon a designated written instrument, the substance of the instrument should be stated in his pleading, or else it should be attached in copy, with appropriate reference. 31 Cyc. 65, 8, and cases cited in note 44.

In the instant case it is obvious that complainant's right to the asserted judgment lien depends entirely upon the certificate in question, and that the existence of a certificate embodying all of the five features prescribed by the statute (Code, § 7874), duly registered, is vital to the equity of his bill.

The only question, therefore, that remains to be considered is whether or not the absence from the bill of any showing of the substance of the certificate is aided and supplied by a presumption of law that the cercuit clerk who made the certificate included in it everything required by the statute.

The rule invoked is primarily a rule of evidence of universal recognition, and innumerable cases illustrate its varied, and often dubious or conflicting, applications. 22 Corpus Juris, 130-142, §§ 69-72. It springs from the old maxim "Omnia praesumunter recte esse acta." Greenleaf states, as an application of this maxim, that:

"Generally, when an official act has been done which can only be lawful and valid by the doing of certain preliminary acts, it will be presumed that those preliminary acts have also been done." 1 Greenl. on Ev. (16th Ed.) 135.

Conceding that this rule has now been extended far beyond its former scope, and that its precise limitations cannot be fully defined, there are, nevertheless, some limitations which have been recognized by the courts, and which seem eminently just and proper.

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