Theo. Poull & Co. v. Foy-Hays Const. Co.

• Decision Date: 04 February 1909
• Citation: 48 So. 785,159 Ala. 453
• Parties: THEO. POULL & CO. v. FOY-HAYS CONST. CO.
• Court: Alabama Supreme Court

48 So. 785

159 Ala. 453

THEO. POULL & CO. v. FOY-HAYS CONST. CO.

Supreme Court of Alabama

February 4, 1909

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by the Foy-Hays Construction Company against Theo. Poull doing business as Theo. Poull & Co. Judgment for plaintiff and defendant appeals. Affirmed.

The first count in the complaint is for breach of a contract entered into between the parties on the 17th day of July 1905, for the building by the Foy-Hays Construction Company of certain work upon a high school at a fixed price of $1,000, and an acceptance thereof by the Theo. Poull Company who had the contract for constructing the entire building, and the breach alleged is the failure to make the payment on the completion of the work. The other counts are for work and labor done and materials furnished, etc. The third plea sets up a failure of plaintiff to comply with the contract of July 17, 1905, in that the plaintiff failed to do such work as per plans and specifications and to the satisfaction of the architect and superintendent in charge of said work, in that the engine room in the basement was never completed, and the floor in the passage was two inches too high, and that said work was not done within the time of the contract, to the damage of the defendant in the sum of $5,000, which sum is offered to be set off and claim judgment for the excess. The second replication to the third plea is that the plaintiff did not put in the cement floor in the basement room designated in the contract for the reason that when he was on the ground and ready to begin filling in same the foundation for machinery in said room was not in and the room was not ready for the floor, and defendant asked plaintiff to leave that alone, and that he would put it in himself, or have it put in.

The following charges were given for the plaintiff: "(3) I charge you that a plea of set-off confesses the debt sued on, but says that plaintiff ought not to have judgment therefor, because he owes the defendant a debt, which the defendant elects and offers to set off against the claim in suit. (4) I charge you that a set-off is a final demand, growing out of an independent transaction, liquidated or unliquidated, not sounding in damages merely, subsisting between the parties at the commencement of the suit." Charge 5 is set out in the opinion. "(6) I charge you, gentlemen of the jury, that the burden is on the defendant to prove to your reasonable satisfaction the material allegations of his pleas, or one of them, of set-off, including the fact (if it be a fact) that plaintiff breached the contract alleged therein, and that defendant was damaged thereby."

Tomlinson & McCullough, for appellant.

Francis M. Lowe, for appellee.

DENSON J.

This cause is submitted on a motion to dismiss the appeal, as well as on the merits. The motion rests upon the ground that the appeal was not taken within the time prescribed by the statute; that the right of appeal was barred by the statute of limitations. The judgment is a final judgment, and was rendered by the circuit court of Jefferson county on the 19th day of June, 1907. The appeal was taken on the 18th day of June, 1908, more than 6 months after the rendition of the judgment, and 48 days after the Code of 1907 went into effect.

The statute in force at the time the judgment was rendered allowed one year from the rendition of the judgment within which an appeal might be taken (Code 1896, § 436); but section 2868 of the Code of 1907, which became effective on May 1, 1908, provides that "appeals under this chapter, except in such cases as a different time is prescribed, must be taken within six months." It will be observed that there is no saving clause expressed in this section of the Code in respect to judgments in existence at the time the Code took effect. The general rule is that, no contrary intention being expressed in the act adopting a code of laws, all general statutes of a public nature in force when the Code is adopted and promulgated, and not embraced therein, are repealed by virtue of such omission, and by the laws providing for the preparation, revision, adoption, and promulgation of the Code. Hatchett v. Billingslea, 65 Ala. 16; Carmichael v. Hays, 66 Ala. 543; Sawyers v. Baker, 72 Ala. 49; Werborn v. Austin, 77 Ala. 381; Benners' Case, 124 Ala. 97, 26 So. 942. Under this rule there can be no doubt that section 436 of the Code of 1896 (referred to above) was repealed by the adoption and promulgation of the Code of 1907, leaving in lieu thereof, and as a substitute therefor, section 2868 of the Code of 1907.

But we agree with appellee's counsel that an appeal is a part of the remedy, and is not a vested right. Elliott's App. Proc. § 76; B. & P. R. R. Co. v. Grant, 98 U.S. 398, 25 L.Ed. 231; Dennison v. Alexander, 103 U.S. 522, 26 L.Ed. 313; McClain v. Williams, 10 S.D. 332, 73 N.W. 72, 43 L. R. A. 287, 289; Smith v. Packard, 12 Wis. 371. This being true, it is our opinion that section 10 of the present Code continues in force the statute of limitations of one year as to all judgments rendered before the adoption of the Code (such as the one here appealed from), and saves to the appellant the appeal which appellee seeks to have dismissed. The case of Mazange v. Slocum, 23 Ala. 668, cited by appellee, is not in conflict with the theory that section 10 saves the appeal, as above indicated. In that case a very different proposition was before the court from the one now before us. Section 12 of the Code of 1852 was under consideration. It will be remembered that the Code of 1852 abolished the writ of error as the method of bringing civil cases to this court for review, and for the first time in Alabama established appeal as the remedy. Section 3040 of that Code fixed two years as the limitation for the suing out of appeals, and provided that it should not apply to then existing judgments and appeals. The Code took effect on the 17th day of January, 1853. After that date a writ of error (that in the Mazange-Slocum Case, supra) was issued on a judgment rendered prior to the specified date. The court held that appeal was the only remedy, and dismissed the writ. So it was the form of the remedy, instead of the question of limitations, that was involved.

But it was sought in that case to save the writ of error under section 12 of the Code, which...