57 So. 130 | Ala. Ct. App. | 1911
It is urged in behalf of the appellant that this court, in reviewing the rulings of the trial
The bill of exceptions recites that “in the opening argument plaintiffs’ counsel commented on the fact that the mortgage was recorded in the probate judge’s office in Cullman county, and that this was notice to the defendant, and exhibited the indorsement of the record of the mortgage on the back of the mortgage to the jury. This was without objection from defendant’s counsel.” The court in its oral charge to the jury gave them instructions on the subject of the recording of a mortgage in the office of the judge of probate affording constructive notice of it. With the indorsement in question out of the case, this instruction was without pertinency to any evidence before the jury. No objection was made in behalf of the defendant to the court’s instructing the jury, on this subject. It is true that an exception was reserved by the defendant to a part of the court’s oral charge dealing with this subject, but the exception was in such form as to indicate that the purpose was, not to except to the action of the court in charging on a matter claimed not to be embraced in the evidence in the case, but to challenge the correctness of the language excepted to as a statement of the law applicable to the subject dealt with.—Humphries v. State, 2 Ala. App. 1, 56 South. 72. So it plainly appears that the court and the counsel for the plaintiffs, in the presence of the defendant and without objection or protest from him, treated the indorsement on the mortgage as a part of the evidence in the case to be considered by the jury in rendering the verdict. If there is a.requirement, as- is indicated by some rulings in other jurisdictions
One of the plaintiffs detailed a conversation he had with the defendant in reference to the latter’s buying cotton from Morgan. The witness testified that the defendant said, when asked if he had bought any cotton from Morgan lately.: “I don’t know. I think I have, but I will have to see my books.” The witness further testified that he (the Avitness) then went to the defendant’s bookeeper, and, after telling her that defendant had referred him to the books, examined the books, made a memorandum, and then had another conversation with the defendant, in reference to which he testified as folloAvs: “I told him the books showed he got three bales. It Avas his suggestion that he would make Charlie settle up, and I told him if he did that it would be satisfactory. I don’t know that Polytinsky bought any cotton from Charlie Morgan. Mr. Polytinsky’s books
The refusal' of the court to exclude the evidence in reference to cotton shown by the defendant’s books to have been purchased by him from one Godby was justified by the facts that there were circumstances in evidence tending to show that the purchases were really made from Morgan, and that the cotton was embraced in Morgan’s mortgage to the plaintiffs.
The witness Patterson having testified in reference to the plaintiff’s getting one mule which was embraced in the mortgage of Morgan to them, and that they did not get two mules under that mortgage, in the absence of
The questions asked the witness Carl Patterson on cross-examination as to statements made by Morgan in reference to the source from which he obtained a sum paid by him on the mortgage to the plaintiffs called for mere hearsay testimony, and the court was not in error in sustaining objections to those questions.
There was nothing in the part of the court’s, oral charge which was excepted to that could have involved prejudice to the defendant. The first proposition involved in that part of the charge is that the recording of a mortgage in the office .of the judge of probate of a county constitutes constructive notice of it. The fact that in the illustrative statement made by the court . on this subject the county in which the trial took place was mentioned, instead of the county in which the only cotton in question in the case was grown, did not render the statement erroneous. As actual notice of the mortgage is the equivalent of the constructive notice of it afforded by a registration of it in the proper office (Gamble v. Black Warrior Coal Co,, 172 Ala. 152, South. 190), the other statement embodied in that part of the charge could not have involved injury to the appellant.
As the only cotton involved in the suit was cotton claimed by the plaintiffs to have been the property of Morgan, written charge 1 given at the instance of the plaintiffs could not well have been understood by the jury as asserting anything more than if that cotton was raised in Cullman county, then the record of the mort
The assignments of error based upon the giving of written charges 2 and 3 requested by the plaintiffs are not supported by argument or citation of authority, and need not be considered. It may be said, however, that we discover no error in either of them.
As the ground of attack made in behalf of the appellant upon the action of the court in refusing to give written charges requested by him is the claim, already disposed of, that the indorsement of the judge of probate on the mortgage of Morgan to the plaintiffs, showing that it had been registered and recorded, was not in evidence, further mention of those rulings is not necessary.
Affirmed.