Rushton v. Davis

• Citation: 127 Ala. 279,28 So. 476
• Parties: RUSHTON v. DAVIS ET AL. SHOWS v. SAME.
• Decision Date: 16 May 1900
• Court: Supreme Court of Alabama

28 So. 476

127 Ala. 279

RUSHTON v. DAVIS ET AL.

SHOWS v. SAME.

Supreme Court of Alabama

May 16, 1900

Appeals from circuit court, Crenshaw county; J. R. Tyson, Judge.

Garnishment proceeding by T. W. Shows against M. W. Rushton, in which W H. Davis and others appear as claimants of the fund disclosed by the garnishee's answer. From a judgment for the claimants, plaintiff appeals. Also, an action by W. H. Davis and others against M. W. Rushton for money had and received. From judgments for plaintiffs, defendants appeal. Motions by appellees to set aside submissions, and to vacate an order establishing bills of exceptions. Denied. Judgments affirmed.

On March 5, 1891, Mrs. F. E. Davis executed a mortgage to the American Mortgage Company of Scotland, Limited, upon certain lands, to secure the payment of money borrowed by her from said mortgage company. It was provided in this mortgage that in the event of its foreclosure upon default, any balance remaining after the payment of the mortgage debt and all expenses incident to the foreclosure should be paid to the mortgagor, F. E. Davis. Upon default being made in the payment of part of the mortgage debt, said mortgage was foreclosed, under the power of sale contained therein, on March 22, 1897. M. W. Rushton, Esq., acted as the attorney for the mortgage company in selling the land under the mortgage at public outcry. At this foreclosure sale one C. F Gradon became the purchaser of the lands, paying the purchase money to said M. W. Rushton. After satisfying the balance due upon the mortgage debt and paying all expenses incurred in selling the same, there was a balance of $219.13 left in the hands of said Rushton. After the execution of the mortgage Mrs. Davis intermarried with one R. S. Peterson; and on November 2, 1896, as F. E. Peterson, she executed a deed to the same lands included in the mortgage to the mortgage company to W. H. Davis, O. H. Davis, M. E. Davis, and J. C Davis. The name of R. S. Peterson, her husband, nowhere appears in the body of this deed, but his name was signed thereto; and attached to said deed was a certificate of acknowledgment by both F. E. Peterson and R. S. Peterson of the execution of said deed. At the spring term, 1895, of the circuit court of Crenshaw county, one J. W. Beall recovered a judgment against said F. E. Davis; and on October 8, 1895, a certificate of said judgment was filed and recorded in the probate office of said county, in the record books kept in the office for such purpose. After the recovery of this judgment against Mrs. Davis, J. W. Beall sold and transferred all his right, title, and interest in and to said judgment to one T. W. Shows. On March 22, 1897, immediately after the foreclosure of the mortgage from Mrs. F. E. Davis to the mortgage company by the sale under the power contained therein, the said T. W. Shows, as the transferee of the judgment recovered by J. W. Beall against Mrs. Davis, sued out a writ of garnishment upon said judgment, which was served upon said M. W. Rushton, in which he sought to subject to the payment of his said judgment the $219.13 held by him as the balance of the money paid for the purchase of the land at the mortgage sale. M. W. Rushton, as such garnishee, answered the writ of garnishment, in which be admitted having in his possession the said $219.13, but suggested that W. H. Davis, O. H. Davis, M. E. Davis, and J. C. Davis claimed said money. Thereupon the said W. H. Davis and others appeared and propounded their claim to said money, and a statutory trial of the right of property was instituted. This claim suit is the case of T. W. Shows v. W. H. Davis et al. On May 15, 1897, W. H. Davis, O. H. Davis, M. E. Davis, and J. C. Davis, the grantees in the deed from F. E. Peterson and R. S. Peterson, dated November 2, 1896, brought an action for money had and received against the said M. W. Rushton, seeking to recover said sum of $219.13, in which suit they claimed said money by virtue of said deed. This suit is the case appearing in this court under the style of M. W. Rushton v. W. H. Davis et al. Each of these cases was submitted to the court without the intervention of a jury, upon the same statement of facts, which was substantially set forth above. In the claim suit, judgment was rendered in favor of the claimants. From this judgment the plaintiff in the garnishment suit appealed, and assigned the rendition thereof as error. In the action for money had and received, judgment was rendered in favor of the plaintiffs. From this judgment the defendant appeals, and assigns the rendition thereof as error. In this court both of the cases are submitted together as one case. These two cases were tried before Hon. John R. Tyson, who was then circuit judge. Before the bill of exceptions was signed, the term of Judge Tyson as circuit judge expired, and, having been elected as one of the justices of the supreme court, it was necessary to establish a bill of exceptions in each case. On January 18, 1899, upon motion to establish a bill of exceptions, leave was granted to each party to take testimony for this purpose. In accordance with this order, testimony was taken and affidavits filed. On June 6, 1899, the testimony was published. In this testimony there was included an agreed statement of facts, which M. W. Rushton, one of the attorneys representing the appellants, made affidavit was the agreed statement of facts upon which each of the cases was submitted to the trial judge. In this agreed statement of facts there was the following recital: "That on the 2d day of November, 1896, the said F. E. Peterson and her husband, R. S. Peterson, the said F. E. Davis having married said R. S. Peterson since said mortgage was made and since said judgment was obtained, made and executed a deed to W. H. Davis, O. H. Davis, M. E. Davis, and J. C. Davis, pretending to conveying the lands above described to them, which deed was filed for record," etc. It was also recited in the agreed statement of facts attached to the affidavit of M. W. Rushton that "all papers and records referred to are hereby made a part of this statement of facts, and are as follows." There were then set out the mortgage and other papers referred to in the agreed statement of facts, including the court proceedings in the several cases. This agreed statement of facts constituted the bill of exceptions sought to be established by the appellants in each of the cases. On June 8, 1899, the motion to establish the bill of exceptions was granted, and the cause was continued. The bill of exceptions so established included the agreed statement of facts which was attached to the affidavit of M. W. Rushton as stated above. On January 17, 1900, at the succeeding term of the supreme court, each of the cases was submitted on briefs. On March 29, 1900, the appellees, by their attorney, spread a motion upon the motion docket of the supreme court to set aside the submission and vacate the order establishing the bill of exceptions in each of these cases. The grounds of this motion were as follows: First. That since the rendition of judgment in the circuit court in favor of the appellees, from which the appeal in this case was prosecuted, the appellants procured by fraud the establishment of the bill of exceptions by the supreme court, which was falsified in the following manner: That since the rendition of the judgment in the court below, and the making of the transcript by that court, in which he incorporated the judgment entry of the copy of the written agreed statement of facts, the original agreed statement of facts was materially changed by interlining therein the words "pretending to," which are italicized in the clause of the agreed statement of facts copied above. That said clause, instead of reading as copied in said agreed statement of facts, which was incorporated in the bill of exceptions established by the court, should have read as follows: "That on the 2d of November, 1896, the said F. E. Peterson and her husband R. S. Peterson, the said F. E. Davis having married said R. S. Peterson since said mortgage was made and since said judgment was obtained, made and executed a deed to W. H. Davis, O. H. Davis, M. E. Davis, and J. C. Davis, conveying the lands above described to them," etc. That the agreed statement of facts, which was attached to the affidavit and deposition of M. W. Rushton, one of the attorneys in this case, showed that the said words "pretending to" were interlined with a pencil, while the entire body of the original was written with a pen, and that in the opinion of the movants such interlineation was in the handwriting of the...