Thomasson v. Groce

| Ala. | Jan 15, 1868

JUDGE, J.

The court below did not err in permitting a copy of the summons, and complaint, to be substituted in lieu of the original, which had been lost. Previous notice of the motion to substitute was not necessary, as from the time the original process in a cause is served, until the final judgment, the parties are presumed to be in court, and need no further notice of the orders there taken in the cause. — Broxon vs. Broxon, 23 Ala. 684" court="Ala." date_filed="1853-06-15" href="https://app.midpage.ai/document/yonge-v-broxson-6505178?utm_source=webapp" opinion_id="6505178">23 Ala. 684; Code, § 2268. See? also, Wilkerson vs. Branham, 5 Ala. 608" court="Ala." date_filed="1843-06-15" href="https://app.midpage.ai/document/wilkerson-v-branham-6502053?utm_source=webapp" opinion_id="6502053">5 Ala. 608. But in this case the appellant appeared and resisted the motion, and necessarily had notice of it.

We are informed by the bill of exceptions, that after the cause had been submitted to the jury, the plaintiff, to sustain the cause of action set out in the complaint, introduced the affidavit of John W. Bishop, describing the note sued on, and stating that it had not been paid or otherwise discharged, but had been lost or destroyed since the commencement of the action. The bill of exceptions states further, that “ the plaintiff then introduced a witness, who testified that at the commencement of the suit, the witness was in possession of a paper writing purporting to be a promissory note of the same tenor and effect of the note specified in the complaint, and that the same had been lost since the commencement of the suit, and could not be produced or found on diligent searchand further, that, “ to the introduction of this evidence, the defendant objected separately,” &c.

There can be no doubt but that preliminary proof of the loss or destruction of a written instrument must be made before evidence of its contents can be received; and that such preliminary proof should be addressed to the court, and not to the jury. But we can not say that this rule was violated in the present case; while we are informed the affidavit was introduced, the bill of exceptions does not state, with sufficient certainty, that it was introduced as evidence to the jury; and we can not place the court in error by intendment on the construction of a bill of exceptions, which must be constrped most strongly against the party taking it. Furthermore, we must hold, under the influence of the same rule of construction, that the exception to the ruling of the court as to the evidence introduced, refers to the evidence of the witness which immediately precedes the statement of the exceptions, and does not apply to the introduction of the affidavit; and the admission of the evidence of the witness, was free from error.

The charge of the court was no invasion of the province of the jury. The facts were clear and undisputed; and in every such case, the court may well give the law as applicable to the facts, without hypothesis.— Williams v. Shackelford, 16 Ala. 318" court="Ala." date_filed="1849-06-15" href="https://app.midpage.ai/document/williams-v-shackelford-6504029?utm_source=webapp" opinion_id="6504029">16 Ala. 318.

Judgment affirmed.