Tennessee-Hermitage Nat. Bank v. Hagan

Decision Date22 November 1928
Docket Number8 Div. 986
Citation119 So. 4,218 Ala. 390
PartiesTENNESSEE-HERMITAGE NAT. BANK v. HAGAN et al.
CourtAlabama Supreme Court

Appeal from Circuit Court, Limestone County; O. Kyle, Judge.

Motion by W.J. Hagan, Sr., and others to satisfy a judgment recovered by the Tennessee-Hermitage National Bank against movants and others. From a judgment for movants, defendant appeals. Affirmed.

Motion to satisfy judgment for unauthorized release of principal is equitable.

Charge 8, given for defendant, is as follows:

"8. The Court charges the jury that unless at the time of the execution of the original note of W.J. Hagan, C.E Frost, W.J. Hagan, Jr., and others to the Tennessee Hermitage National Bank of Nashville, Tennessee it was known and understood by said Bank that said Bank would look to the First National Bank, of Athens, Alabama, for payment of said indebtedness evidenced by said note, and that the makers of said note were only the sureties for said First National Bank of Athens, Alabama, then it is immaterial what the agreement as to payment of said note between the makers thereof and said First National Bank of Athens, Alabama was, and if it was not known and understood by The Tennessee Hermitage National Bank of Nashville, Tennessee, that said note was to be paid by The First National Bank of Athens, Alabama, or that it was to be liable therefor, then your verdict should be for defendant."

The following charges were refused to defendant:

"1. If the Jury believe from the evidence in this case that the money obtained on the original note executed by Dr Hagan and others was used to pay the indebtedness of either of the makers of said note to The First National Bank of Athens, Alabama, then their verdict must be for The Tennessee Hermitage National Bank, defendant.
"2. If the Jury believe from the evidence that the money obtained on the original note was used to take up any indebtedness of the makers of said note or either of them to the First National Bank of Athens, Alabama, then the loan was not a loan to said First National Bank of Athens, Alabama but was a loan to the makers of said note.
"3. If the Jury believe from the evidence that the money obtained upon the original note was obtained for the purpose of taking up and discharging the obligation or obligations of either of the makers of said note, to the First National Bank of Athens, Alabama, or any obligation or obligations upon which said maker or either of them was liable then your verdict should be for Tennessee Hermitage National Bank, defendant.
"4. The court charges the Jury that if the money obtained upon the original note executed by the Movants or some of them was obtained and used to take up a draft of H. & L. Warten Cotton Company or a draft upon which said H. and L. Warten Cotton Company was liable, then their verdict must be for Tennessee Hermitage National Bank, defendant."

The following charge were given for movants:

"A. I charge you, gentlemen of the jury, that a contract of suretyship is a contract whereby one or more persons engages to be answerable for the debt, default, or miscarriage of another, and in determining whether or not the Movants in this cause were sureties on the note to the Tennessee Hermitage National Bank, and whether or not the First National Bank of Athens, Alabama, was the principal you may consider for whose benefit the loan was made and may consider which party or parties received the benefit of the loan.
"B. I charge you, gentlemen of the jury, that under the law of Alabama, it is immaterial in what form the relation of principal or surety is established, and if from all the evidence you should find that the loan from the Tennessee Hermitage National Bank was made to the First National Bank of Athens, Alabama, and that the Movants in this cause signed the note as sureties, and knowledge thereof was brought home to the Tennessee Hermitage National Bank, then I charge you, that if from all the evidence in this case you are convinced the Tennessee Hermitage National Bank released the First National Bank from all liability, and such release was made without the consent or connivance of these Movants, then I charge you, you must find a verdict for the Movants.
"C. I charge you, gentlemen of the jury, that if from all the evidence in this cause, you are convinced that the money loaned by the Tensessee Hermitage National Bank was understood by all of the parties interested therein to have been borrowed by the First National Bank of Athens, and that the same was placed to the credit of the First National Bank of Athens, on the books of the Tennessee Hermitage National Bank, and said money was checked out by the First National Bank of Athens, and used exclusively for its own purposes, then I charge you that the relationship of principal and surety existed between the First National Bank of Athens, Alabama, and these Movants. And if you further find, from the evidence that the Tennessee Hermitage National Bank released the First National Bank of Athens, Alabama, from all liability on said loan, and that the release was made without the consent of the Movants, then I charge you that you should find a verdict for the Movants, and declare the judgment discharged.
"D. I charge you, gentlemen of the jury, that in determining whether or not these Movants were sureties for the First National Bank of Athens, Alabama, you may consider whether the loan was made for the benefit of the First National Bank or whether it was for the benefit of any or all of the individual signers of the note, and you may further consider which party in fact received the benefit of the loan."

Exception was reserved to the following portions of the oral charge:

"Now gentlemen, I further charge you that although in this case the First National Bank did not sign that note, still it could be the primary debtor, notwithstanding that its name was not signed to the note, and if this bank here, the First National Bank of Athens, was the primary debtor, that is, if the loan was made and understood by the Tennessee Hermitage National Bank that it was loaning the money to the First National Bank of Athens, then the Athens Bank was the primary debtor, although its name was not on the note."
"And I further charge you that this release, gentlemen, signed by the Tennessee Bank to the First National Bank of Athens, did destroy the bill, that was filed by these petitioners, or some of them, in which they were seeking to require--to ask this court to compel the First National Bank of Athens to pay this indebtedness, setting up that it was the debt of the First National Bank."

James G. Rankin, of Athens, and R.E. Smith and R.C. Brickell, both of Huntsville, for appellant.

A.J. Harris, of Decatur, for appellees.

THOMAS J.

The motion in the circuit court was treated in the nature of a suit on judgment or a civil cause, in which may be demanded and had a trial of controverted facts by a jury. Sections 8593, 8594, Code. And the appeal is from that judgment for defendants in the original judgment and the plaintiffs in the motion tried in the circuit court. The evidence of that trial is sought to be exhibited by a bill of exceptions that is now to be stricken in part as to documents inserted therein by the clerk pursuant to references employed by the judge in the bill of exception. The certiorari was granted in support of the motion, and the return indicates the nature of the references to the respective documents inserted in the bill of exceptions.

The submission here is "on briefs," and counsel all agree in their writings that such submission was on the motion to strike the documents from the bill of exceptions. This is necessary and in fact desirable to be determined before there is a consideration and decision on the merits.

The rule obtaining in this jurisdiction for the incorporation, by reference, of documents, in a bill of exceptions, is that the same must be so described in the directions in the bill of exceptions to that end, by date, amount, parties, or other identifying features, that the transcribing officer, or his successor in office, unaided by memory, will readily and with certainty know what document is referred to without room for mistake; that is, the identifying feature employed in the direction and reference must be such as to leave no room for mistakes by the transcribing officer preparing the bill of exceptions. Jones v. First Nat'l. Bank, 206 Ala. 203, 89 So. 437; Fuller v. Fair, 206 Ala. 654, 91 So. 591. This ancient rule, declared in Looney v. Bush, Minor, 413, and Parsons v. Woodward, 73 Ala. 348, has always been given adherence in this court. Kilby Car & Fdry. Co. v. Georgia Cas. Co., 209 Ala. 356, 96 So. 319; Buckner v. Graves, 210 Ala. 294, 98 So. 22.

The several documents required to be inserted in the bill of exceptions are directed by the use of such words as:

"The original note was then offered in evidence. (Clerk will here insert original note.)" "The release was then read to the jury. (The clerk will here insert the release.)" "The movants then introduced in evidence the recorded certificate of judgment of defendant against movants and others. (Clerk will here insert certificate.)

"The State of Alabama, Limestone County.

"No 2299. Circuit Court. March Term, 1922.

"I, R.L. Thomas, Clerk of the Circuit Court for said County and State, hereby certify that on the 23rd day of March 1922, Tennessee Hermitage National Bank, Plaintiff, recovered of C.E. Frost, Lifford Cole, H.B. Malone, L.M. Warten, W.J. Hagan, Louise Hagan, W.J. Hagan, Jr., & Rosa Warten Clay Defendants, in the Circuit Court of said County, a judgment by default against defendants with waiver of exemptions as to personal property, for the sum of Twenty eight thousand two
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