Evans v. St. John

| Ala. | Jan 15, 1839

GOLDTHWAITE, J.

The errors assigned, in this court, call its attention to matters of exception, which arose in the County court, but which are unnoticed in the assignment of errors in the Circuit court. Our rules of practice do not permit this course to be pursued, and the party is presumed to waive all errors which are not specifically mentioned — (Ripley vs. Coolidge et al. Minor, 11; Brahan vs. Collins, Minor, 169.)

Under no circumstances can questions be reviewed in this court, which were omitted to be presented before the Circuit court, when sitting as a court of errors, on judgments rendered by the County court.

We presume it was the intention of counsel, to present for revision the action of the Circuit court on the errors there assigned, and as there is- no joinder in error, and as the party might be permitted' to re-assign, we have thought it best to look into the judgment actually rendered by the Circuit court, although the errors assigned do not cover that judgment.

It was unnecessary for the plaintiff in the action to have specially replied to the pleas concluding to country, and the omission of a similiter is not an error for which the judgment will be reversed — (Ripley vs. Coolidge et al. Minor, 11.) There is, therefore) nothing in this assignment.

The second is not supported by the facts of the case. No plea puis darfien continuance was offered-, but as we Understand from the bill of exceptions, pleas to the merits were offered, shewing matter of defence, which Existed when the pleadings were made up, but were not then Within the knowledge of the defendant to the action. What these matters of defence were, is not shewn, but the answer to this, if properly assigned, would be, that the admission or rejection of additional pleas, is a matter wholly Within the discretion of the court, and cannot be examined in a court of errors.

The third assignment. is also unsupported by the exception taken, or at least the nature and object of the evidence offered and excluded, is more fully stated in the assignment, than the bill of exceptions warrants. As therein stated, the defendant “offered as evidence, the account due to Charles Irby & Co., which was liquidated by the proceeds of the bill of exchange sued on, and two others made by the same parties, to reduce the amount of the bill.” Now, argument is useless, to shew that nothing is presented by this exception, on which the court can act. The account is not exhibited, nor does it appear how it could affect the rights of the plaintiff, who is an endorsee of the bill.

The fourth assignment relates to the exclusion of the testimony of the acceptor of the bill, showing the contract between the parties, and to prove that he had sufficient funds in his hands, belonging to the maker, at the maturity of the bill, to discharge it, and that the same was never presented to Mm for payment. It does not appear that the witness was prevented from giving evidence, as what he said is stated in the bill of exceptions) but we infer that the evidence was overruled, as shewing nothing which, by possibility, could affect the right- of the plaintiff to a recovery. It was wholly immaterial-to the defence, whether the bill was made for the benefit of the acceptor or maker, or by which of them the funds were used. So, likewise, as to the omission of a personal"''' demand of the acceptor. The holder was only bound to present the bill at the place designated for payment, and if refused, his right of action against the drawer was complete, when the bill was protested, and notice duly / given. In none of the matters assigned for error in the Circuit court, was there anything for which the judg-. ment of the County court should have been reversed.

The only remaining point to be noticed, is the amendment made in the Circuit court of its judgment) after the suing out of the writ of error. The judgment Was entered for a lesser sum than by law it should have been, and was a mere clerical error. The plaintiff in error could have no legal advantage from this error, and its correction impaired no right which he could assert. If the judgment had been entered for too much, in consequence of a clerical error, it might, notwithstanding error brought, be amended in the court below, and the amended judgment would be affirmed without damages, and at the coáts of the defendant in error — (Brown & Parsons vs. Tarver, Minor, 370.) But, in the present case, the condition of the parties is not affected by the amendment. If it had not been made; an affirmance would have been the result of the writ of error, and it cannot he changed by the correction of the judgment, by entering it for the proper sum.

If the court was asked to .affirm the judgment, with damages against the sureties in the writ of error bond; the aspect of the case might be varied, in some degree, as by a judgment against them for the amount of the amended judgment, a liability would be imposed beyond that which was known to them when the bond was given, and it would seem, on principle, that the defendant in error, by asking the amendment of the judgment pending the writ of error, had, by his own act, discharged the sureties. This point, in relation to the sureties, is not to be considered as decided, as the defendant in error has intimated his assent, that no judgment shall go against them.

Let the judgment of the Circuit court be affirmed.