58 So. 427 | Ala. | 1912
Lead Opinion
1. Bill of Exceptions: Signing; Evidence. — It may be shown by affidavit that a bill of exceptions was not presented and signed within the time allowed by law, although it appears on its face to have been presented to and signed by the trial judge within such time.
2. Mortgages: Failure to Satisfy of Record; Penalty; Complaint. — The complaint examined and held to allege the existence of all facts necessary to show the right to the penalty provided by section 4898, Code 1907, for the failure to satisfy the record of the mortgage.
3. Same; Notice. — A notice to enter satisfaction on the mortgage record as required by section 4898, Code 1907, is properly served on the surviving partner of the partnership to whom the mortgage was executed, and hence, a complaint, in an action against a surviving partner for the penalty, which alleges that such notice was given to the surviving partner, is not demurrable for failing to show notice to the mortgagee.
4. Same. — Where the mortgagee is a partnership, notice to one of the partners is sufficient to render all liable for the penalty prescribed by section 4898. Code 1907, for failure to enter satisfaction on the mortgage record.
5. Same; Liability. — A mortgagee is liable for the penalty provided by section 4898, Code 1907. for failure to satisfy a record of the mortgage whether the failure was willful, negligent or merely inadvertent. *252
(Mayfield and Simpson, JJ., dissent as to the bill of exceptions.)
The bill of exceptions is a part of the record, and when completed cannot be supplemented or corrected by the aid of extrinsic evidence, oral or otherwise, which does not form a part of such record. —Stern v. Lehman,
DORTCH, MARTIN ALLEN, for appellee.
The bill of exceptions must be signed within the time prescribed by law, and it may be shown that a bill was not signed within the time although it purported to be, and *254
the bill will be stricken. —
Dissenting Opinion
SIMPSON, J., and the writer, dissent on this proposition, and are of the opinion that the bill of exceptions in this case has, by virtue of express provisions of our statutes (Code, §§ 3018, 3019) become a part of the record, and is for that reason entitled to all the presumptions of verity and conclusiveness that attach to any other part of the record; and that it cannot be contradicted by parol proof, and certainly not by exparte affidavits. They think that the evils to flow from such a practice will prove the unwisdom of such a precedent. They are of the opinion that if the appellee can thus contradict this part of the record — can show by exparte affidavits that the bill certified is not a bill of exceptions, and therefore not a part of the record — he might, upon the same reasoning, show that the judgment entry has the wrong date, that it was actually taken during vacation, and not in term time, and is therefore no judgment.
The bill of exceptions being stricken, we can consider only the asignments of error based upon the record proper. These go to the trial court's overruling the *256 appellant's demurrers to the several counts of the complaint.
The action was to recover the statutory penalty for failure to mark the records of several mortgages "satisfied," as is provided by section 4898 of the Code.
The complaint contained 14 counts. The even-numbered counts were all eliminated and need not be considered. The demurrers were, however, overruled as to the odd-numbered counts, and those rulings are assigned as error. The several counts are substantially alike, and hence the ruling as to any one of them, by the trial court, practically raises the same question of law as to all. Hence we will follow the course pursued by the appellant in his brief, and consider only those which raise all the questions, involved on the appeal, as to the record proper.
We cannot agree with appellant that these counts, or any one of them, were subject to the demurrer interposed, and we are of the opinion that the trial court properly overruled the demurrer thereto. Each count practically followed the language of the statute, and alleged the existence of all the facts which the statute makes necessary to incur the penalty.
There is nothing in the objection that the mortgage in question was to the firm or partnership, and that the notice to satisfy was given to the surviving partner instead of to the firm. The notice, of course, should be served on some person, and the surviving partner was certainly a proper person upon whom to serve the notice, if he was not the only person upon whom the notice could be properly served.
The counts did sufficiently allege that the mortgage had been "paid or satisfied," and that the appellant was the mortgagee, transferee, or assignee of the mortgage, and that he had received payment or satisfaction *257 thereof, and that he failed to satisfy the same of record for two months after notice in writing so to do from the mortgagor.
No one of the grounds of demurrer to these odd-numbered counts was well taken and the court properly overruled the demurrer to each.
The mortgage in question having been executed to a partnership composed of two members, one of whom afterwards died, the surviving partner (appellant here) was the proper person upon whom notice to satisfy should be served, and upon whom the law imposed the duty to satisfy, if the mortgage had in fact been paid and satisfied before the notice was given.
The rule declared in the case of Renfro v. Adams,
Finding no error in the record proper, the judgment appealed from must be affirmed.
Affirmed. All the Justices concur, save DOWDELL, C. J., not sitting.
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