Jordan v. Rice

51 So. 517 | Ala. | 1910

Lead Opinion

MAYFIELD, J.

— The only assignment of error on the record is as follows: “The court erred in refusing each of the following written charges, to wit: Nos. 1, 2, 3, 4, 5, 6, 7, and 8, asked by appellant.” This assignment is too general to authorize a separate review of the several charges so numbered. The appellant can take nothing by the assignment unless each of the charges so numbered should have been given. Some of these charges are palpably bad, and were unquestionably properly refused; nor do we mean here to intimate that any one of them should have been given.

The insistence of counsel, in his brief, is as general, or more so, if possible, than his assignment of error. After arguing that a certain transfer and assignment of a judgment was void, and also that it was in trust for the transferror, the argument concludes: “The charges, Nos. 1, 2, 3, 4, 5, 6, 7, and 8, requested by the plaintiff, should therefore have been given. The refusal of each is insisted upon separately.- — Code 1907, § 4287, and cases cited.” No reason is assigned why any particular charge should have been given, but they are all argued together. Many of these charges, if not all, being properly' refused, the judgment of the trial court must be affirmed. — Ashford v. Ashford, 136 Ala. 631, 34 South. 10, 96 Am. St. Rep. 82.

Affirmed.

*653Simpson, Anderson, Denson, and Sayre, JJ., concur.



Dissenting Opinion

McCLELLAN, J.

(dissenting). — The effect of the majority ruling is to refuse separate review here unless the errors assigned are paragrapliieally enumerated. The rule (1 of the S. C. Pr.) does not so require; nor has any precedent or authority for such a conclusion been discovered. I cannot agree to such an extension of the rule. This appellant, by the employment of the word “each,” separated his allegation of errors, plainly avoiding the imputation of generality, and specifically alleging that the court below erred in the several particulars when it refused “each” of the charges numbered. Deference to the case of Ashford v. Ashford, 136 Ala. 631, 640, 34 South. 10, 96 Am. St. Rep. 82, cited as authority by the majority will show that the use of the Avord “each” clearly distinguishes this case from'that one.

The charges enumerated all involved, and attempted to apply to the status of fact in evidence, the proposition that the alleged transfer of the judgment, secured by Moore against the Nashville, Chattanoog & St. Louis Railroad Company, to Rice, the claimant (for outline of the controversy see this case on former appeal, 151 Ala. 523, 44 South. 93), Avas fraudulent and void as against the plaintiff, Jordan, who Avas a judgment creditor of Moore. To hold that the failure to argue each of these eight charges separately — each “particular charge” — is, to my mind, an entirely erroneous proposition. So far as diligent investigation discovers, it is the first time the rule Avith respect to charges requested in bulk or with respcet to unseparated assignments of error — in both cases Avhere all charges or all assignments must be good in order to reverse, as Avas held in the latter alternative, in Ashford v. Ashford, supra— *654has been applied to the brief of counsel for appellant. If this ruling is consistently adhered to and applied here, repetition, needless reiteration, and unnecessary rediscussion will become a virtue in brief writing, whereas such has been heretofore generally thought to be a vice. In my judgment, the summary of the argument of appellant’s counsel as appears in the majority opinion shows such an insistence upon the several errors separately assigned as to forbid a declination to review each ruling complained of. The reporter will set out the charges, 1 to 8, inclusive.

Rice, the claimant, himself testified that “Moore executed and delivered to him a written instrument; that this writing was lost; that it was in substance that Moore transferred to claimant all his interest in said judgment in payment of a certain piece of land that claimant then and there agreed to sell to Moore, and of an account for supplies that Moore owed claimant, with the agreement that when Rice got the money on the judgment against the railway he would in consideration thereof convey said lands to Moore; that if claimant did not get the money he was not to convey the land to him, and that in the meantime Moore should pay Rice rent on said lands; that at the time of said transfer Moore was then in possession of said lands as Rice’s tenant, and has been in possession thereof as such tenant ever since, paying Rice rent thereon; and that no conveyance has ever been made to Moore.” On the cross, Rice further testified “that he was not certain that the writing said anything about the debt for supplies that Moore owed him, but his best recollection was that it did; that he had never given Moore any receipt against any part of said debt for supplies or for the land; that he had never entered any credit anywhere on either of said debts; that he did not agree to satisfy either debt, or any part of it, until he got the money on said judg*655merit; that whatever he got on the judgment was to go as a credit on Moore’s indebtedness to Bice when Bice got the money.” There was- no other evidence tending, in any degree to clothe the claimant with any higher or better right than did his own testimony.

From Bice’s testimony it affirmatively appears that he has not paid or parted with anything of value, or surrendered, or even credited, his claim against Mo ope. His agreement with Moore, as he states it, was in fact conditioned upon the receipt of the money on the judgment; that the consideration for the conveyance of the land and the sátisfaction of the account was-to be the-money he (Bice) got on the judgment.

In my opinion, it is obvious that the plaintiff was entitled to the general affirmative charge requested; that the cause should be reversed for its refusal to plaintiff (appellant).