Hoffman v. Knight

| Ala. | Nov 15, 1899

DOWDELL, J.

This is a suit for a penalty given by the statute, and the form of the action is -debt. The joinder of the two counts in. the complaint is authorized by -section 3292 of the Oode of 1896. The complaint in this case contained the requisite, averment and is -almost identical with the complaint in the case of Williams v. Bowdin, 68 Ala. 126" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/williams-v-bowdin-6510959?utm_source=webapp" opinion_id="6510959">68 Ala. 126, which was by this court held good on demurrer. The complaint here was not open to any of the assignments or grounds of defendant’s demurrer, and the action of the court in overruling the demurrer is free from error. — Williams v. Bowdin, 68 Ala. 126" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/williams-v-bowdin-6510959?utm_source=webapp" opinion_id="6510959">68 Ala. 126; Renfro v. Adams, 62 Ala. 302" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/renfro-v-adams-6510301?utm_source=webapp" opinion_id="6510301">62 Ala. 302.

The other assignments of error go to the giving of written charges 1, 2, 3 and 4 requested by the plaintiff, and the refusal of written charge No. 2 requested by the defendant. There is no assignment of error to the refusal of written charge No. 1 requested by the defendant.

As was said in Williams v. Bowdin, supra, the whole gravamen of the action is the failure of the defendant for -the time specified in the statute after payment of the mortgage and request made by the mortgagor to enter satisfaction upon the record. Written charge No. 2 contained a statement of the whole gravamen of the action, -and as a proposition of law this charge is free from the criticism urged by 'the appellant.

We think the criticism by counsel of charge No. 3 is hypercritical. This charge asserts that “the gi'st of the action is the failure on the part of the defendant to satisfy the record after notice in writing fo satisfy it, and that plaintiff does not have to prove that he has sustained any damages.” The definition of “gist”1 as given in Webster’s Unabridged Dictionary is “the' main point of a question; the point on which the action-rests ; the pith of a matter; as, a gist of a question.” We think it clear that the failure-on the part of the defendant to satisfy the records after notice in writing to satisfy, is the pith of the matter, and the charge being referable to the evidence in the case undoubtedly states a point upon which the action rests.. If the charge had any misleading tendency, this could have been obviated by the defendant’s asking an explanatory charge. The charge did not withdraw from the consideration of the jury any issue in the -case. These charges Nos. 2 and 3, being applicable to both counts in the complaint, and' therefore to the whole complaint, and containing as they do correct statements of the law were not misleading, and the court committed no error in giving them.

The suit being for the recovery of a penalty given by the statute, no question of damages sustained by the plaintiff by reason of the defendant’s failure to enter satisfaction, arises in the cáse; therefore, charge 4 correctly states the law, and was properly given.

The effect of -charge number 1 given at the request of the plaintiff was to withdraw from the jury all consideration of the matters of defense set up under pleas 4, 5 and 7, and upon which the plaintiff had taken issue. It is equivalent to instructing the jury to find for the plaintiff upon the facts hypothesized in the charge, and in effect does -so instruct the jury, notwithstanding they might find from the evidence that these pleas had been sustained. This charge was erroneous, and should have been refused.

The notice to satisfy was in the following language: “I now notify you to have all my mortgages marked satisfied on the record.” This reasonably and fairly informed the defendant as to what was required of him, and was a sufficient compliance with the requirements of the statute. — Steiner v. Snow, 80 Ala. 45" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/steiner--bro-v-snow-6512452?utm_source=webapp" opinion_id="6512452">80 Ala. 45; Loeb v. Huddleston, 105 Ala. 257" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/loeb-v-huddleston-6515914?utm_source=webapp" opinion_id="6515914">105 Ala. 257; Perryman v. Smith, 105 Ala. 573" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/perryman--co-v-smith-6515970?utm_source=webapp" opinion_id="6515970">105 Ala. 573; Clark v. Wright, 123 Ala. 591" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/adams-v-teague-6518278?utm_source=webapp" opinion_id="6518278">123 Ala. 591.

For the error pointed out the judgment of the court must -be reversed and cause remanded.