Shepherd v. Clements

• Decision Date: 17 February 1931
• Docket Number: 6 Div. 788.
• Citation: 25 Ala.App. 7,141 So. 250
• Parties: SHEPHERD ET AL. v. CLEMENTS.
• Court: Alabama Court of Appeals

141 So. 250

25 Ala.App. 7

SHEPHERD ET AL. v. CLEMENTS.

6 Div. 788.

Court of Appeals of Alabama

February 17, 1931

Rehearing Denied May 26, 1931.

Reversed After Mandate Dec. 15, 1931.

Rehearing Denied Jan. 12, 1932.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by O. R. Clements against Everett Shepherd and A. Page Sloss individually and as partners under the name of the Shepherd-Sloss Realty Company. From a judgment for plaintiff defendants appeal.

Reversed and rendered.

Certiorari granted by Supreme Court in Shepherd et al. v Clements, 141 So. 255.

Certiorari denied by Supreme Court in Shepherd et al. v Clements, 141 So. 256.

Coleman, Coleman, Spain & Stewart, of Birmingham, for appellants.

R. Du Pont Thompson and Walter S. Smith, both of Birmingham, for appellee.

BRICKEN, P.J.

This was an action on the common counts by O. R. Clements against Shepherd Sloss Realty Company, the individuals composing that firm, and R. G. Hawkins, for work and labor done. The defendant Hawkins was eliminated by amendment because of lack of service.

The trial was before the circuit court without a jury, and, at the conclusion of the testimony, heard ore tenus, the learned trial judge rendered judgment for the plaintiff, Clements (appellee here), for $381.37. The defendants (appellants) bring the cause here for review by appeal.

No exception was reserved to the rendition of the judgment rendered by the Jefferson circuit court. For that reason we are precluded from reviewing the action of the court below in rendering the judgment. Hill v. Condon, 14 Ala. App 332, 70 So. 208; Greek American Produce Co. v. Louisville & Nashville R. Co., 1 Ala. App. 272, 55 So. 455.

The appeal in this cause is from the judgment. No appeal is prosecuted from the action of the court in overruling the motion for a new trial. The appeal bond recites that the defendants "has (have) prayed and obtained an appeal from said judgment to the Court of Appeals of Alabama," etc. Under this appeal, the court's action on the motion for a new trial is not reviewable here. McMillon v. Skelton, 208 Ala. 693, 95 So. 148; Robinson v. Steverson, 20 Ala. App. 59, 100 So. 910.

This leaves for review five assignments of error that relate to rulings on the admission of evidence. A careful consideration of each of these questions fails to disclose any error that probably injuriously affected the substantial rights of the parties. Supreme Court rule 45.

The judgment appealed from is affirmed.

Affirmed.

On Rehearing.

The appeal in this case is from the Jefferson county circuit court, and is governed by the Jefferson County Practice Act (Acts 1888-89 pp. 797, 800 § 7 et seq.).

The decisions of this court, as well as those of the Supreme Court, are to the effect that the Local Practice Act controls to the exclusion of the general statutory provisions embraced in section 9502 of the Code 1923. Ex parte State ex rel. Harle-Haas Co., 19 Ala. App. 400, 97 So. 680; Ex parte Doak, 188 Ala. 406, 66 So. 64; Ex parte Byers Machine Co., 18 Ala. App. 78, 89 So. 88; Ex parte Payne, 130 Ala. 189, 29 So. 622.

The case of Browne v. Giger, 221 Ala. 176, 128 So. 174, has been consulted. We find nothing in that case to indicate that section 9502 of the Code repeals the Local Practice Act above referred to.

The application for rehearing is overruled.

Opinion after Remandment.

The former decision by this court in this case dealt only with the question of procedure. The merits were not discussed, as this court was of the opinion that the principal points of decision were not presented. Our views are expressed in said opinion, and need not be restated. On certiorari to the Supreme Court, the decision here reached was reversed and the cause remanded to this court for further consideration. Ex parte Shepherd & Sloss Realty Co. et al. (In re Shepherd & Sloss Realty Co. et al. v. Clements (Ala. Sup.) 141 So. 255. Under the statute (Section 7318 of the Code 1923), the decisions of the Supreme Court shall govern the holdings and decisions of this court. We will therefore proceed to write to the merits of this case.

Action by O. R. Clements on the common counts, including a count for money due by account, against Everett Shepherd and A. Page Sloss as individuals and as partners doing business under the firm name and style of Shepherd & Sloss Realty Company; and Sloss Realty Company; and Shepherd & Sloss Realty Company, a corporation; and R. G. Hawkins. No service of the summons and complaint was had upon R. G. Hawkins, and, when the case came on trial, on motion of plaintiff, R. G. Hawkins was stricken as a party defendant. The remaining defendants entered a plea of the general issue in short by consent, insisting under such plea upon defenses of the general issue and the statute of frauds. The case was tried by the court without a jury, and judgment rendered for the plaintiffs in the amount of $381.37.

The appellants, defendants in the court below, assign for error the action of the trial court in rendering judgment for the plaintiff and in overruling defendants' motion for a new trial. Principal insistence of the appellants is that the great weight of the evidence offered by the plaintiff shows that the agreement relied on is void under section 8034 of the 1923 Code of Alabama, which provides, among other things, that every special promise to answer for the debt, default, or miscarriage of another is void, unless the agreement or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing.

The bill of exceptions discloses that in the month of December, 1927, the appellants entered into a contract with the Birmingham Excavating Company whereby, for a stipulated compensation to be paid, the Birmingham Excavating Company agreed to excavate and haul away a specified quantity of dirt from the southeast corner lot of Highland avenue and Twentieth street in the city of Birmingham, Ala.; and to that end to do all the work required to be done, and furnish all the materials, equipment, etc. R. G. Hawkins and the Birmingham Excavating Company were one and the same person, and were so treated by the parties in the court below.

Thereafter, and in the latter part of December, 1927, R. G. Hawkins contracted with the plaintiff, O. R. Clements, to haul the excavated dirt from the premises referred to, and agreed upon the compensation to be paid by Hawkins to Clements. Being fearful that Hawkins would not pay him (Clements) for his work, Clements testified that he had certain transactions with the appellants whereby plaintiff claims appellants became obligated to pay him for his work in hauling the dirt. There is much contradiction and uncertainty in the plaintiff's own testimony.

Over the objection of the appellants that the admission of such testimony involved a violation of the opinion rule, plaintiff was allowed to testify that he did some work for R. G. Hawkins and Shepherd-Sloss Realty Company, a partnership, in the month of January, 1928, but this general statement must be weighed in the light of the subsequent and more detailed testimony of the plaintiff as to the transactions with appellants.

The plaintiff further testified that at 8:30 o'clock on the morning that he began hauling dirt he had a conversation with Everett Shepherd, one of the appellants, as follows: "Well, I told Mr. Shepherd that Hawkins wanted me to work on that job of his over there, and if he would be responsible for my money that I would work on it; otherwise, I wouldn't; and he told me 'Well, when the job is complete, I will owe Hawkins approximately $2000.00, and I won't pay him any more until the job is complete, and I will pay off the truck hire myself'; after that I did the work in the sum of $995.50."

Plaintiff, on cross-examination, testified that he started to work on the job about the last of December, 1927, pursuant to his agreement with Hawkins, and that he did not have the conversation with Shepherd until two or three days after he had started to work for Hawkins.

Plaintiff further testified that he had a second conversation with Shepherd, upon which he also seeks to predicate liability of the appellants, at which one Murdock was present; and that this second conversation with Shepherd was either on the same day on which the first conversation occurred or the day following. Murdock, a witness for the plaintiff, testified that the conversation at which he was present occurred when the job was about half through, which would have fixed the time of this conversation as about January 14, 1928. Murdock testified: "Well, the Birmingham Excavating Company had this contract and they were trying to get trucks, and Mr. Clements called us and wanted us to send some trucks over there-or Hawkins did, rather the Birmingham Excavating Company; and we told him that we wouldn't send them over there unless we were sure of our pay, and so then, Mr. Clements and myself went to see Mr. Shepherd and asked him if he would be responsible for the pay, and he said that Mr. Hawkins had approximately $2,000.00-I believe it was-coming at that time, and that he would arrange to see that we got our money." "Mr. Clements told Mr. Shepherd that he wouldn't proceed unless he would be sure of his money, unless he (Clements) was sure that his (Shepherd's) firm would see that he got the money." That thereupon Shepherd responded that he "Would see personally that we all got the money."

Testifying as to the course of the transaction between himself and Hawkins, plaintiff testified: "Me and Mr. Hawkins got together and counted these tickets and put...