Hunter v. Wood

Dec 15, 1875
Reporters:
Before:
Manning
MANNING, J.

The error assigned upon a supposed judgment of the circuit court, sustaining a demurrer to the plea, is not properly presented by the record of this cause. The transcript of the minutes of ‍‌‌‌​​‌‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌‌​‌‌‌​​​‌​​​​​​‌​‌‌​​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​​​​​‌‌‌​​​​‌‌‌​​​‍the court, where only such judgment can legally appear if it was rendered, does not contain it; and it cannot be shown by a recital that it was rendered, made in the bill of exceptions.—Petty v. Dill, 53 Ala. 641.

The demurrer is a part of the pleading in the suit, and the decision of the court, whether sustaining or overruling the demurrer, should appear in the record as regularly ‍‌‌‌​​‌‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌‌​‌‌‌​​​‌​​​​​​‌​‌‌​​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​​​​​‌‌‌​​​​‌‌‌​​​‍made, whether any bill of exceptions be taken or not, and should not be set forth in any bill of exceptions.

Interest runs on a note payable on demand only from the time when demand is made, or suit upon it brought.—Maxey v. Knight, 18 Ala. 300; Dodge v. Perkins, 9 Pick. 369; Brefogle v. Beckley, 16 Serg. & R. 264; Dillon v. Dudley, 1 Marsh. (Ky.) R. 66. And it makes no difference that the note was ‍‌‌‌​​‌‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌‌​‌‌‌​​​‌​​​​​​‌​‌‌​​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​​​​​‌‌‌​​​​‌‌‌​​​‍given, as this one seems to have been, for money received at the time it was made.—Schmidt v. Limehouse, 2 Bailey, 276; Pullen v. Chase, 4 Pike (Ark.) 210.

The court, therefore, erred in its instructions to the jury, that plaintiff below was entitled to interest from the day *73next after the date of the note, and in refusing the second charge asked on behalf of defendant below.

It was not error to refuse the ‍‌‌‌​​‌‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌‌​‌‌‌​​​‌​​​​​​‌​‌‌​​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​​​​​‌‌‌​​​​‌‌‌​​​‍third charge asked for defendants below. It has been long settled, whether logically or not, that suit on a note payable on demand may be brought without a previous request of payment, the bringing a suit being itself considered a lawful demand.—Maxey v. Knight, supra; Hunt v. Nevers, 15 Pick. 500; Wells v. Abernathy, 5 Conn. 222.

As we suppose that upon a re-trial of the cause, express evidence will be given ‍‌‌‌​​‌‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌‌​‌‌‌​​​‌​​​​​​‌​‌‌​​​‌​‌​​‌​​‌​‌‌‌‌​​‌​​​​​​​​‌‌‌​​​​‌‌‌​​​‍on the subject of demand, it is unnecessary to consider whether the credits on the note can be regarded as evidence of a demand of more than was paid.

Judgment reversed, and cause remanded.