Sowell v. Bank of Brewton

• Decision Date: 29 October 1898
• Citation: 119 Ala. 92,24 So. 585
• Parties: SOWELL ET AL. v. BANK OF BREWTON.
• Court: Alabama Supreme Court

24 So. 585

119 Ala. 92

SOWELL ET AL. v. BANK OF BREWTON.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Escambia county; J. R. Tyson, Judge.

Action by the Bank of Brewton against D. S. Sowell and others. Judgment for plaintiff. Defendants appeal. Affirmed.

This was an action brought by the appellee, the Bank of Brewton against the appellants, and counted upon a promissory note executed by the defendants, and which had been transferred to the plaintiff. On the trial of the cause, the plaintiff introduced the note in evidence, which was signed by each of the defendants, and was payable to the order of J. C. Emley. This note was attested by T. J. Donald and one W. J. Jenkins and on the back of said note appeared this indorsement "Pay to the order of the Bank of Brewton, without recourse. [Signed] J. C. Emley, by W. J. Jenkins Attorney." The principal witness for the plaintiff was W. J. Jenkins, whose testimony was taken by deposition. W. J Jenkins testified to the execution of the note by the defendants, and, further, that he was a witness thereto, and that he indorsed the note to the plaintiff, as the authorized agent of the payee named therein, J. C. Emley. After setting out the deposition of W. J. Jenkins, showing his answers to the direct and cross interrogatories, the bill of exceptions recites as follows: "The testimony of said witness Jenkins, as shown by his depositions, was objected to by defendants at the time of its introduction as to the execution of said note,and also as shown by defendants' cross interrogatories. The court overruled the objection, and the defendants excepted. The deposition was then read in evidence, and introduced along with the note; whereupon the defendants renewed their objections to the introduction of the note and the testimony of the witness Jenkins, as to the execution of the same, on the ground that the testimony of said Jenkins, by his depositions and note attached, showed him to be incompetent to prove the execution of said note second, the note, together with his testimony set out in his answer to the first, second, and third direct interrogatories, and the third cross interrogatory, showed said Jenkins to be (1) a party of interest to said note, and (2) not a proper subscribing witness to the same. Second ground: That the testimony of the said Jenkins was secondary and inadmissible to prove the execution of the said note, by reason (1) that it appeared from an inspection of the note in controversy, coupled with his testimony, that said Jenkins was not a proper subscribing witness to said note, and (2) that he was a party of interest to said note, and (3) that the other subscribing witness, T. J. Donald, had not been first called, or his absence explained or established according to law. The court overruled the objections, and the defendants excepted. Defendants then objected to the introduction of said note and the introduction of the testimony of the witness Jenkins, and moved the court to rule out the same so far as it tends to show an assignment of said note from J. C. Emley to plaintiff bank, on the ground, first, that said Jenkins was incompetent to testify and prove the assignment of said note, by reason, first, that the note, together with his testimony, as set out in his answer to the first, second, and third direct interrogatories and the third cross interrogatory, and his other testimony, showed said Jenkins to be (1) a party of interest to said note, and (2) him not to be a proper subscribing witness to the same. That said testimony above mentioned of said Jenkins was secondary evidence, and inadmissible to prove the assignment to plaintiff. ***" While the depositions of said Jenkins were being read in evidence, defendants objected as soon as it appeared, by the testimony of said Jenkins in the answer to the fourth cross interrogatory, that his power of attorney was in writing, and not attached to his deposition, and moved the court to rule out all or so much of said Jenkins' testimony as referred to his authority and power of attorney from J. C. Emley, and said Jenkins' right and authority to indorse and assign said note for said Emley to plaintiff bank, on the grounds-First, the evidence was secondary; second, the written power of attorney was the best evidence; third, it was not shown that written power of attorney was mislaid, lost, or destroyed, and could not be obtained according to law. The court refused the motion, overruled the objection, and defendants excepted. The cashier of the bank testified to the indorsement of the note by Jenkins, as the agent of the payee, J. C. Emley. The testimony of the defendants tended to show that they did not execute the note which was introduced in evidence, and executed a different contract, at the time spoken of by the plaintiff's witnesses. There were verdict and judgment for the plaintiff. The defendants moved the court for a new trial, upon the grounds-First, that the verdict was contrary to the law and the evidence; second, because the court...