This аppeal comes from a nonjury trial in the Mobile Circuit Court with judgment against Lloyd’s of London for $495.58.
The action is on a “nonrecording” policy, 1 wherein certain underwriters at Lloyd’s (appellant) undertook to indemnify Fidelity (appellee) against “any loss direct” which it might sustain “only insofar as [Fidelity would be] damaged through being prevented from” (a) obtаining possession, or (b) enforcing its rights (or both) with respect to property covered by a chattel mortgage or a conditional sales contract “solely as the result of the failure of [Fidelity] duly to record the Instrument with the proper Public Officer.” (Italics supplied.) The plaintiff claimed a loss of $500 because of its failure to record a paper on a 1949 Ford automobile.
Lloyd’s filed two pleas: (a) denial of Fidelity’s allegations; and (b) “that the instrument purchased by the Plaintiff * * was and is a Chattel Mortgage, * * * that the alleged damage suffered by the Plaintiff, if any there was, did not result from its being prevented from obtaining рossession * * * solely as the result of the failure * * * duly to record * * * with the proper Public Officer * * * ”
There was a stipulation. On the issues of notice to the underwriters and the authority of B. F. Adams Company, as agents of the underwriters, oral testimony was taken in court.
The stipulated chronological sequence runs:
1. ) July 16, 1953, Robert L. Jefferson gave a note due аnd payable the next day to Government Employees Insurance Company.
2. ) November 27, 1953, Jefferson bought a 1949 Ford from Acme Motor Company for a total “time price” of $946.-36, $235 cash “on or before delivery” and with a “deferred balance” of $711.36, payable in eighteen monthly installments of $39.52 еach, beginning January 2, 1954, the payment of the price being secured by an instrument labeled “Conditional Sales Contract”;
3. ) December 23, 1953, Government Employees sued Jefferson on his note and on February 16, 1954, got judgment for $925.90;
4. ) February 23, 1954, Government Employees recorded a certificate of said judgment in the probate office;
5. ) June 2, 1954, Government Employees had execution issued;
6. ) August 11, 1954, the sheriff, under said writ, levied on the car;
7. ) August 12, 1954, Fidelity learned of the levy and notified B. F. Adams Company thereof that same day;
8. ) September 23, 1954, Fidelity filed with Adams a "filled in” claims form which Adams had furnished it;
9. ) September 24, 1954, the attorneys for Lloyd’s wrote Adams denying liability
10. ) September 29, 1954, a bona fide buyer “for value without notice of the claim of Fidelity” bought said car at a sale held by the sheriff under said levy. At the time of the sheriff’s sale, the car was worth $434.72, and no one “from or for Fidelity” attended said sale or proclaimed “what interest Fidelity * * * had in the said automobile.”
Fidelity has filed two motions to dismiss this appeal. The first motion is on grounds of Lloyd’s filing the transcripts of evidence and of the record proper too late in the circuit court and in this court, respectively-
There was no motion in the circuit court for a new trial. This being a civil case, the statute as to- taking appeals quoted in McDaniel v. State, Ala.App.,
“Any appeal taken * * * shall be shown in the following manner: * * * (b) By giving security for the costs of the appeal to be approved by the clerk * *
Thereafter, under § 768, the clerk begins preparation of the transcript of the “record” which includes the original of the transcript of the “evidence” if filed, Code, P.P.Supp., T. 7, § 827(lb).
Judgment came February 8, 1957. “Notice of appeal” with waiver of citation was filеd August 2, which was also the date on which security for costs was filed with the circuit clerk.
The filing of this security dates the appeal as taken on August 2, 1957, § 766(b), supra; Danley v. Danley,
The circumstance that seems to have prompted Fidelity to move to dismiss was the fact that the transcript of the testimony (or “evidence”) was “filed” by the court reporter (with notice to counsel thereof) with the circuit clerk on May 16, 1957.
On August 2, 1957, the circuit clerk endorsed this transcript "Refiled August 2nd 1957.” This endorsement Fidelity contends was surplusage and hence a nullity.
However, from a reading of the various statutes consequent upon the abolition of bills of exception at law, as here (P.P.Supp., and 1957 Noncum.Supp., Code 1940, T. 7, § 827(1), et seq.), together with T. 7, § 769, it is clear that the court reporter’s filing of a transcript of testimony with the clerk of the trial court is not contemplated by law except in the event of an apрeal. If a lawyer wants one for motion for new trial that is a private matter between him and the reporter.
The reporter is entitled to be assured of his fee under the statute, § 827(2), supra; and, moreover, he is not required to commence transcription until the appeal has been perfected and unless he has, been notified to transcribe within five days of appeal, § 827(1), second sentence. See Wheeler v. Alabama National Bank of Montgomery,
The appeal being August 2, 1957, the “filing” or depositing of the transcribed testimony at an earlier date was a mattеr neither required nor regulated by statute or court rule, and, accordingly, should not begin the running of the period to get the record to the appellate court under
revised Appellate Rule 37, Code 1940, Tit. 7 Appendix (
Fidelity has, for alleged deficiencies in the assignments of error, also аlternatively moved to strike Lloyd’s assignments and to dismiss.
“The Court erred in its judgment of February 8, 1957 (Transcript pages 5 and 6) in ordering and adjudging that the Plaintiff have and recover of the Defendant the sum of Four Hundred Ninety-five and 58/100 Dollars ($495.-58), the amount of damages as so assessed by the Court, and all court costs in this cause created.”
Fidelity claims this is too general a specification. However, in Morgan Plan Co. v. Accounts Supervision Co.,
As to assignments 2, 3, 4, and 5, Fidelity says Lloyd’s is barred to question the sufficiency of the evidence because a new trial was not moved for below. A motion for a new trial is not a condition precedent to appellate review as to whether or not the plaintiff’s evidence makes out a scintilla. See Code 1940, T. 7, § 260 (second and third sentences); Browne v. Giger,
The sixth assignment, based on the failure of complaint to state a cause of action, is availаble even though no demurrer was made to the complaint. Louisville & N. R. Co. v. Williams,
Fidelity says the seventh assignment, relating to admission of testimony .after objection, is bad because no exception was taken at the time of the trial court’s ruling on Lloyd’s objection. Act No. 44, approved April 1, 1955 (1955 Acts p. 150), pertinently provides:
“Exceptions to rulings or any order or orders of the court are unnecessary anc[ * * * it is sufficient that a party, at the time the ruling or order * * * is made or sought, makes known to the court the action which he desires * * * or his objection to the action of the court and the grоunds ‡ >{í í¡< >>
This new statute also applies to the eighth assignment.
In view of the remittitur provisions of Code 1940, T. 7, § 811, a motion for new trial is not required as a prelude to an appeal because of an excessive award of damages, where the judge has, as here, fixed the amount, City of Anniston v. Douglas,
The foregoing discussion fits the other grounds of Fidelity’s motion tо strike the assignments of error. We deny the motion and proceed to consider the cause on the merits.
The insuring agreement is not of a broad form (e. g., Cook v. Continental Ins. Co.,
With respect to third parties, without actual notice, recording confers on a chattel mortgage attributes different from those attending a recorded conditional sales contract.
Code 1940, T. 47, § 123, reads in part:
“Conveyancеs of personal property to secure debts, * * * are inoperative against creditors * * * with out notice, until recorded, * * (Italics supplied.)
Section 131 (ib.) reads pertinently:
“All other contracts for the conditional sale of personal property, by the terms of which the vendor retains the title until payment of the purchase money and the purchaser obtains pоssession of the property, * * * are,as to such condition void against * * * judgment creditors without notice thereof, u-nless such contracts are in writing and recorded * * (Italics supplied.)
Alabama nominally classifies itself as a “title” state, i. e., a mortgage passes title to the mortgagee. Hence, the necessity for our defeasance statute:
“The payment of the mortgage debt, whether the mortgage is of real or personal property, divests the title passing by the mortgage.” Code 1940, T. 47, § 181.
See also Maxwell v. Moore,
“Creditors” as used in § 123, supra, are those subsequent to the conveyance, Birmingham News Co. v. Barron G. Collier, Inc.,
If the instant instrument were a conditional sales contract, then, under the analogy of the Supreme Court’s construction of the real property recording statute, Code 1940, T. 47, § 120, which also applies (inter alios) to “judgment creditors,” Gоvernment Employees’ judgment took precedence over Fidelity’s unrecorded paper, Wiggins v. Stewart Bros.,
“ * * * it matters not * * * when the debt was contracted * * * [if] the judgment was rendered before the prior deed was recorded * *
In Aetna Auto Finance v. Kirby,
However, based on Bern v. Rosen,
A vicarious lien (for a fieri facias under § 521) is established by our certificate of judgment registration act — T. 7, §§ 584 and 585- — ■” on all property of the defendant,
\but only on that] which is subject to levy and sale
under execution,” thus incоrporating the definition of property so subject as employed in § 519, supra. (Italics and bracketed matter added.) See Decatur Charcoal Chemical Works v. Moses,
As between the parties, the principle of freedom of contract permits the widest of latitude in the expression of their bargain between buyer and seller or borrower and lender, e. g., Campbell Motor Co. v. Spencer,
When, however, the agreement impinges on areas of public policy or of statutory pre-emption, such as usury, fraudulent conveyances, recording acts, priоrities and bankruptcy, it becomes necessary at times to distinguish between a title retention or conditional sales contract and a chattel
mortgage, e. g., Ballard v. First National Bank of Birmingham,
On the other hand, in Glenn, Fraudulent Conveyances and Preferences (Rev.Ed.), ■§ 503, the author 2 writes:
“Title theory or liеn theory to the contrary notwithstanding, the underlying rule is that an unrecorded chattel mortgage is nothing as against the mortgagor’s creditors. It is the recording that gives it life. * * *
“ * * * We should say, or rather our courts should say for us, that a chattel mortgage is inconceivable unless a statute says otherwise; and hеnce the life and well being of this security depend upon strict conformity with the recording acts, without which, indeed, the ‘mortgage’ would be nothing.”
The provisions 3 for acceleration of all future payments upon default and for repossession, foreclosure sale and a residue for Jefferson, or a deficiency for Fidelity with respect to the relation of the sale proceeds to the unpaid aggregate payments, have the earmarks of an evidence of debt rather than of an installment sale. Jones, supra, § 946; Glenn, supra, § 513.
The sheriff’s sale could have been confinеd to Jefferson’s equity of redemption (T. 7, § 519), and hence the loss was due to Fidelity’s failure to claim the property. There was no insuring agreement to furnish legal assistance (if there can be such, except in a defense subsidiary to an underwriter’s liability or supposed liability), and, therefore, Fidelity shоuld have interposed its claim under Code 1940, T. 7, §§ 1168 et seq.
Lloyd’s second plea was supported by the evidence, and hence the judgment below is due to be
Reversed and remanded.
Notes
. See American Aviation & General Ins. Co. v. Georgia Telco Credit Union, 5 Cir.,
. Glenn’s discussion is built around the text of the Uniform Chattel Mortgage Act which would be merged into the proposed Uniform Commercial Code. 1943 Proceedings, Commissioners Uniform State Laws, pp. 67, 68, and 149. Glenn, § 495, n. 33a, takes note that T. 47, § 123, constitutes constructive notice to subsequent creditors only.
. “7. Time is of the essence of this agreement and if the purchaser defaults in complying with any of the terms of this contract or the holder of this contract deems the property in danger of misuse or confiscation, or if the purchaser defaults or fails to pay any note or installment when due, or if the automobile is damaged, stolen or destroyed, or if any insurance compаny should cancel or give notice of intent to cancel any policy of insurance on said vehicle, or if execution, attachment or other writ be levied on any of purchaser’s property, or if a petition under the Bankruptcy Act be filed against or. on behalf of the purchaser, or if for any reason the holder hereof deems itself or the vehicle insecure, the full amount of the purchase price then unpaid shall become immediately due and payable at holder’s option, * * * or said car may be sold at private or public sale withоut being at the place of sale, and with or without notice to the Purchaser, and Seller shall have the right at any sale to purchase said car the same as any other persons, and all laws governing such sale are hereby waived by Purchaser. Such private or public sale may bе held before any judgment in any repossession suit. The proceeds of any sale, after deducting expense, liens, storage and an attorney’s fee paid or incurred by the Seller, shall be applied to the amount due on said note and the surplus, if any, shall be paid to Purchaser; and in case of a deliciency, Purchaser covenants to pay forthwith the amount thereof to the holder of said note, together with a reasonable attorney’s fee in the event the collection of said deficiency be placed with an attorney. As to any debt provided or secured by this contract the purchaser waives all rights of exemption under the Constitution and laws of the State.”