Salmon v. Salmon, 138

• Court: Alabama Court of Appeals
• Writing for the Court: [13 Ala.App. 512] BROWN, J.
• Citation: 69 So. 304,13 Ala.App. 510
• Parties: SALMON et al. v. SALMON.
• Docket Number: 138
• Decision Date: 06 April 1915

69 So. 304

13 Ala.App. 510

SALMON et al.
v.
SALMON.

No. 138

Court of Appeals of Alabama

April 6, 1915

Rehearing Denied May 11, 1915

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Action by A.J. Salmon against F.A. Salmon and others. From a judgment for plaintiff, defendants appeal. Affirmed. [69 So. 305]

[13 Ala.App. 511] J.W. Strother, of Dadeville, for appellants.

Bridges & Oliver, of Dadeville, for appellee.

[13 Ala.App. 512] BROWN, J.

Action by appellee against appellants on an injunction bond. The bond sued on is set out in the complaint in haec verba, and a breach thereof shown by a dissolution of the injunction and a failure of the obligors on the bond to pay the damages specifically claimed and alleged to have been sustained by the plaintiff as a result of suing out the injunction. The complaint was not subject to any of the objections urged in the demurrer, and it was properly overruled. Babcock v. Reeves, 149 Ala. 665, 43 So. 21; Persons v. Thornton, 86 Ala. 308, 5 So. 470; 13 Cyc. 178(2); Rosser v. Timberlake, 78 Ala. 162; Flournoy v. Lyon, 70 Ala. 308; Copeland v. Cunningham, 63 Ala. 394.

Records of the proceedings, judgments, and decrees of courts of record of this state are required to be kept, and when the final records are made up as constituting the judgment roll, this becomes the best evidence of the proceedings. 4 Wigmore, Ev. § 2450. And by statute (Code, § 3983) a duly authenticated copy of the record is made of equal dignity with the record as evidence of what the record shows. However, in the absence of a showing that the final record has been made up, the original files are the best evidence and are admissible. Williams v. State, 68 Ala. 551; Smith v. State, 103 Ala. 69; ^[d] Wharton v. Thomason, 78 Ala. 45; Duncan v. Freeman, 109 Ala. 188, 19 So. 433; 2 Wigmore Ev. § 1186; Clymer v. Cameron, 55 Miss. 593. The ruling of the trial court in admitting in evidence the original files and decrees in the chancery proceedings was well within this rule, and without error. Babcock v. Reeves, supra.

Damages occasioned by employment of counsel to render services in the Supreme Court on appeal, as well as those rendered in the trial court in relieving the [13 Ala.App. 513] plaintiff from the ban of the injunction, were recoverable, and the evidence tending to show the rendition of services in the Supreme Court was admissible. Jackson v. Millspaugh, 100 Ala. 285, 14 So. 44; Bush v. Kirkbride, 131 Ala. 405, 30 So. 780.

The appellants Lovelace and Young, however, insist that the evidence, without room for adverse inference, proves their special pleas A and C, and that the court erred in refusing charge 3 requested by them. The substance of these pleas is that Lovelace and Young did not sue out an injunction against the plaintiff, nor procure or cause...