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(100 So.) erned by section 2855, and prosecuted the s prescribed ; and it results as our conclusion appeal to the circuit court, and from the that the motion to dismiss the appeal must later court to this court. The solution of prevail. the question rests of course upon a proper Appeal dismissed. construction of our statute, so as to arrive at the true legislative intent. The general

ANDERSON, C. J., and SAYRE and rule as to such construction applicable to MILLER, JJ., concur. question of this character is found stated in Pepper v. Horn, 197 Ala. 395, 73 South. 46; quoted from City of Birmingham v Southern Express Co., 164 Ala. 529, 51 South. 159, as follows:

SOUTHERN RY. CO. V. WILLIAMS. "Special provisions relating to specific subjects control general provisions relating to gen

(6 Div. 102.) eral subjects. The things specially treated will (Supreme Court of Alabama. April 10, 1924. be considered as exceptions to the general pro

Rehearing Denied May 15, 1924.) risions."

1. Exceptions, bill of 41(1)-Compliance In City Council of Montgomery v. Bldg. with statute as to time of presenting bill & Loan Ass'n, 108 Ala. 336, 18 South., 816,

essential to its validity. the same principle of construction is found A compliance with Code 1907, 8 3019, relstated in the following quotation there ap- ative to time within which a bill of exceptions proved:

must be presented to the trial judge and

signed by him, is essential to the validity of "When the law descends to particulars, such the bill. more special provisions must be understood as exceptions to any general rules laid down to 2. Exceptions, bill of 50—Bill presented to the contrary; and the general rules must not judge in another state where he approved (vice versa) be alleged in confutation of the it held void as not a “presentation." special provisions."

Bill of exceptions which instead of being

filed with the clerk of the court during the [2] So, in the instant case, applying this judge's absence, as required by Acts 1915, p. rule of construction, we find that the Legis- 816, was mailed to the judge in another state, lature has made special provision as to ap where he approved it, held void as not being peals in cases of this character, with a lim- a “presentation” within Code 1907, $ 3019. itation as to time of 20 days. It is leadily and Phrases, First and Second Series, Pre

(Ed. Note.-For other definitions, see Words seen from an examination of these provisions

ent-Presented-Presentation.] that the entire legislative scheme looked to a speedy determination of all questions relat- 3. Removal of causes Ow79(1) – Elimination ing thereto, and we think it would be entire

of resident defondant by affirmative charge, ly out of harmony with the legislative in

given at his request, held not to entitle non

resident defendant to removal. tent to hold that appeal was also provided under section 2853 of the Code, where the sion of evidence upon request of resident de

Giving of affirmative charge at the conclucause might be carried first to the circuit fendant, which ruling was adverse to plaincourt and then on to the appellate court, tiff and without his assent, did not make cause with the limitation of time as prescribed for then removable to federal court at instance such appeals. The stipulation for the pros- of remaining nonresident defendant. ecution of the appeal within 20 days under 4. Appeal and error 1036(2)-Error as for section 4216 itself indicates the legislative misjoinder held harmless in view of amend. intent for an early determination and final ment. settlement of such matters; and we

If a complaint was demurrable as for mis-
persuaded that this section controls as to joinder of the Director General of Railroads
the matter of appeals under article 4 of and a railway company, such error held ren-
chapter 86 of our Code. There is ample room dered harmless, in view of amendment striking
for the operation of section 2855 in all cases out Director General as party defendant,
of final decrees not otherwise specially pro-

On Rehearing.
The provisions of this latter section are 5. Appeal and

w655(1)-Supreme general, but those concerning appeals in mat

Court must ex mero motu strike bill of exters of this character are special provisions,

ceptions not presented to judge as required treating this particular subject. These spe

by statute. cial provisions therefore are to be understood

Where bill of exceptions was not presented as exceptions to the general rule, by which Acts 1915, p. 816, Supreme Court must strike

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to judge as required by Code 1907, § 3019, and we must here be controlled.

bill ex mero motu, on theory presentation of The appeal in the instant case was not bill is jurisdictional; Code 1907, 8 3020, fortaken pursuant to section 4216 of the Code, bidding striking by court ex mero motu, not in the manner and within the time therein applying.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

EVER

Appeal from Circuit Court, Jefferson Coun- , and without his assent, and the trial court ty; Romaine Boyd, Judge,

rightly held that it did not operate to make Action for damages for malicious prosecu- the cause then removable and thereby to tion by Sam L. Williams against the South-enable the other defendant to prevent plainern Railway Company and others. From a

tiff from taking a judgment against it. judgment for plaintiff against Southern Rail Whitcomb v. Smithson, 175 U. S. 635, 20 Sup. way Company, that defendant appeals.

Ot. 243, 44 L Ed. 303. Transferred from the Court of Appeals un

[4] It also is insisted that the complaint der Acts 1911, p. 449, 8 6. Affirmed.

was subject to defendant's demurrer as for

a misjoinder of the Director General of RailStokely, Scrivner, Dominick & Smith, of roads and the Southern Railway Company. Birmingham, for appellant.

Whether this was error or not we need not Bowers, Dixon & Bowron, of Birmingham, decide, for, conceding that it was, only for for appellee.

the purpose of deciding this case, it was ren

dered harmless by an amendment to the ANDERSON, C. J. [1, 2] Section 3019 of complaint striking out the Director Genthe Code of 1907 requires the presentation eral as a party defendant. of a bill of exceptions to the trial judge with The judgment of the circuit court is afin 90 days from the day on which the judg-firmed. ment is entered and not afterwards, and if Affirmed. correct must be signed by him within ninety days after said presentation. A compliance SOMERVILLE, THOMAS, and BOULDIN, with the statute as to presentation is essen- JJ., concur. tial to the validity of the bill of exceptions.

On Rehearing.
Smith v. State, 166 Ala. 24, 52 South. 396.
The bill of exceptions was presented to the
trial judge by mail at Biloxi, Miss., and was

ANDERSON, C. J. [5] It is urged that so noted by him, and the proof negatives any bill of exceptions because no motion was made

the court should not decline to consider the other presentation to him or the filing of same with the clerk within 30 days during

to strike the same upon the submission of the absence of the judge, as provided by Acts the cause to the Court of Appeals, which 1915, p. 816. While we have several author- said cause was transferred to this court unities to the effect that the jurisdiction and der the Acts 1911, p. 449. True, section 3020 powers of a circuit judge are coextensive of the Code of 1907 forbids striking a bill with the boundaries of the state, and he can

of exceptions by the court ex mero motu, receive and approve a bill of exceptions in except upon a motion seasonably made, beany county in the state, we have none hold cause not signed in time; but, as heretoing that he can do so beyond the limits of fore held, this section does not apply to a the state. Bruce v. McMillan, 175 Ala. 416, failure to present the bill as required by 57 South. 486; Ex parte Nelson, 62 Ala. section 3019 of the Code and Acts 1915, p. 376. Indeed it was not contemplated that a 816, as this is jurisdictional, and the point circuit judge could perform this or any oth- must be taken whether a motion to strike er official act in another state, as Acts 1915, was or was not made upon the submission of

the cause. p. 816, makes provision for filing same with

Box y. So, R. R., 184 Ala. 598, the clerk when the judge is.out of the state. 64 South. 69; Hartselle & Co. v. Wilhite, 3 We are constrained to strike the bill of ex

Ala, App. 612, 57 South. 129. ceptions, which is accordingly done.

It is next insisted that under the early [3] The suit was for a joint tort against case of Collier v. State, 2 Stew. 388, the inthe Southern Railway, a nonresident, and dorsement of the presentation was a clerical one Cameron, a resident of Alabama, and or ministerial act, which could be performed the defendant Southern Railway petitioned beyond the jurisdiction of the officer makfor a removal of the cause to the federal ing the indorsement. This Collier Case was court, which said petition was denied and as

one in which the facts done and required to which the appellant does not insist upon tified to same in another county. Here we

were in the proper county and the clerk cerAfter the conclusion of the evidence, however, the trial court, upon request, gave

not only have a certificate made outside of the aflirmative charge for the defendant the state, but the physical presentation of Cameron, whereupon the Southern Railway the bill outside of the state, and the propriety renewed its petition for removal upon the of such a presentation is, in effect, contrary theory that Cameron had, in effect, been

to the statute, which expressly provides for eliminated, leaving it, a nonresident, the filing same with the clerk when the judge is sole defendant, and insistence is made that the out of the state. trial court erred in denying the last petition

The rehearing is overruled. for removal. This was a ruling on the merits and not a ruling on the question of ju SOMERVILLE, THOMAS, and BOULDIN, risdiction. It was adverse to the plaintiff | JJ., concur.

error.

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P. 609.

ON

the Jade

(100 So.)

Upon Rehearing.
FARRELL V. ANDERSON-DULIN-VAR-

8. Trial 256 (6)-One complaining of charge NELL CO. (8 Div. 644.)

as misleading should request explanatory

charge. (Supreme Court of Alabama. April 17, 1924.

Where evidence conflicting in assumpsit as Rebearing Denied May 15, 1924.)

to exact amount due, if charge open to construc.

tion that jury are directed to find some specific I. Account, action on all-Bookkeeper's af. fidavit held sufficient to render account ad. amount, an explanatory charge should be re

quested. missible. An affidavit by plaintiff's bookkeeper at- 9. Trial em 260(1)-No reversal for refusal of

general charges covered by oral charge. tached to statement of account stating that af

Reversal cannot be had for refusal of genfiant "has personal knowledge of correctness” eral charges covered by the oral charge. of the account due, his employer adding "as he verily believes,” showed sufficient personal

Appeal from Circuit Court, Madison Counknowledge to render the account admissible un ty; James E. Horton, Jr., Judge. der Code 1907, § 3970, as amended Act 1915,

Action in assumpsit by the Anderson

Dulin-Varnell Company against J. R. Far2. Depositions Om64(3)-Answer to question rell: Judgment for plaintiff, and defendant held not objectionable as not responsive.

appeals. Transferred from the Court of ApAnswer, to question as to whether witness peals under Acts 1911, p. 449, $ 6. Affirmed. knew of his "own personal knowledge that J.

The verified statement of account is as folwas indebted to plaintiff at time of said trans

lows: action," that "J. was indebted to plạintiff at time transaction took place" held not objection- / “Statement Anderson-Dulin-Varnell Company, able as not responsive.

"Knoxville, Tenn., March 1, 1922.

"J. R. Farrell, Huntsville, Ala.
3. Depositions 110Refusal of general mo-
tion to exclude entire deposition cannot put "Interest after maturity.
court in error, if partially competent.

1920.

July 9. 4 piece silk 15-57%
Refusal of a general motion to exclude an

6048-6178 1.60

$311 60 entire deposition, or to exclude all interroga- July 31. 5 dozen hair nets at 1.00.....

5 00 tories to a witness, cannot put trial court in

4 dozen handkerchiefs at .90....... 3 60 error, if any of the testimony is competent.

10 dozen handkerchiefs at 1.25. 12 50

Postage 4. Appeal and error om 1050(1) Whether

Insurance

Interest
vendee assuming debts had paid other cred-
itors instead of plaintiff held immaterial.

$360 20
Whether vendee of a business assuming cer- "State of Tennessee, County of Knox.
tain debts of vendor had paid creditors whom

“Personally appeared before the undersigned, vendor stated that he owed, instead of plain- a notary public in and for said county duly tiff, was not material where defendant had op-commissioned and sworn, D. F. Rightsell to me portunity to prove that plaintiff's account was well known and made oath in due form of law, pot included in his assumption of liability, that the within account against J. R. Farrell 5. Trial 234(4)—Hypothetical instruction 20/100 dollars, is justly due Anderson-Dulin

amounting to ($360.20) three hundred sixty and directing verdict no invasion of jury's prov. | Varnell Co., Inc., of which firm he is bookkeepince,

er, and that he has personal knowledge of the Instruction hypothesizing certain facts, and correctness of same, after the allowance of all directing verdict for plaintiff if jury should find credits of which the said J. R. Farrell is entithem, held not to invade province of jury. tled as he verily believes.

“[Seal.]

D. F. Rightsell. 6. Contracts em 187(3)-Buyer, assuming as "Subscribed and sworn before me this 1st part of consideration seller's debt to third day of March, 1922. person, held suable by latter.

"W. A. De Groat, Notary Public." Where defendant, on purchasing business, as part consideration, assumed certain debts of

26

08 27 16

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It appears that the merchandise in ques. rendor including plaintiff's debt, plaintiff, hav- tion was sold by the plaintiff to J. M. Willis; ing assented to transaction, could sue for mon- that Willis sold his stock of goods, including ey bad and received.

these in suit, to the defendant, a part of the

consideration for the sale being defendant's 7. Contracts om 187(5) - Facts held sufficient to show acceptance by plaintiff of agreement Willis, and that Willis prepared a written

assumption of certain indebtedness owed by by buyer to pay seller's debt to him.

statement of the debts to be assumed by deWhere vendee of a business assumed ven- fendant, including that in suit, which statedor's debts, acceptance of the agreement by vendor's creditor, sufficient to enable him to ment was signed by defendant. recover from vendee, could be implied from his

Defendant denied that the account in suit letter to vendee demanding payment as well as

was embraced in the statement signed by by his bringing suit.

him. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.

We of

I is

Charge 1, given at plaintiff's request, is as [4] As to whether or not defendant bad follows:

paid other people that Willis stated he owed "1. If you believe from the evidence that the was not material as the trial court offered to defendant agreed with J. M. Willis to pay the let him prove that the plaintiff's account was plaintiff the amounts shown on the list mark- not included. ed Exhibit A, to the deposition of J. M. Willis, [5] There was no error in giving the plainas a part of the consideration of his trade with tiff's requested charge 1. It did not invade J. M. Willis, you must find for the plaintiff.”

the province of the jury, but hypothesized White & Watts, of Huntsville, for appel- and presented to them the real issue in the lant,

case whether or not defendant agreed as a Griffin & Ford, of Huntsville, for appellee.

part of the consideration of the trade to pay

plaintiff the claim as embraced in the stateANDERSON, C. J. [1] The affidavit to the ment Exhibit A, as testified by Willis and account was sufficient to render it admissible which was denied by the defendant. as evidence under section 3970 of the Code of [6] It is next urged, in brief of appellant's 1907 as amended by the Act of 1915, p. 609. counsel, that the defendant's general charge The affiant was bookkeeper of the plaintiff, should have been given for the reason that and the affidavit sets up this fact and that he the proof does not justify the right to mainhas personal knowledge of the correctness of tain an action for money bad and received, the account after the allowance of all credits, that the facts do not establish an implied of which the said J. R. Farrell is entitled “as contract, and if there was a contract at all he verily believes.” Of course, the affidavit it was an express one between defendant and must be based upon personal knowledge, but Willis to which the plaintiff was neither a we think this one shows that it was and that party nor privy. It was held in our early case the same was sufficiently positive notwith- of Huckabee v. May, 14 Ala. 263, which has standing the addition of the words “verily been often cited and followed, that, when one believes." His belief is not based upon in- sold or traded a thing of value to another, formation, but upon his personal knowledge. and the consideration or a part thereof was "Where the essential facts have been stated the assumption of a debt owing from the venpositively, an additional statement of infor- dor to a third person by the vendee, and the mation and belief is 'harmless.” 2 C. J. 355. third person assented thereto while the Here the additional statement does not con- promise remained in force, the third person tain the word "information,” but is a positive may sue in his own name for money had and statement of belief based upon personal received though he may not have been other. knowledge. Moreover, this was not the ex- wise a party to the contract. The price the clusive method of proving the account, and defendant agreed to pay included the debt Willis proved the correctness of same in his due from Willis to the plaintiff, and as to deposition which preceded the introduction this extent it could have been considered in of said account. Sullivan Timber Co. v. no other light than as a fund in the defendBrushagle, 111 Ala. 114, 20 South. 498. ant's hand for this purpose. Having in his

[2] Assignment of error 3 goes to the fail. hands money to which the plaintiff was enure of the court to exclude the answer to the titled it may declare in assumpsit for same. following interrogatory to witness De Groat: See, also, Moore v. First National Bank of

"Do you know of your own personal knowl- Florence, 139 Ala. 595, 36 South. 777, and edge that J. M. Willis was indebted to the cases there cited. plaintiff at the time of said transaction between “A suit for money had and received is in the himself and J. R. Farrell?"

nature of an equitable action, and is maintain

able whenever one person has money which ex The answer was:

æquo et bono belongs to another

and "J. M. Willis was indebted to the plaintiff at it is not always necessary that actual money the time the transaction took place."

shall have been received. If property, or any.

thing else, be received as the equivalent of monThis was, in effect, an affirmative answer ey, by one who assumes to cancel or dispose to the question and the only ground assigned of a property right, for which, by contract, or for the extlusion of same was that it was liability, legal or equitable, it is his duty to ac“not responsive to the question."

count to another, the latter may treat the [3] Assignment of error 2 goes to the refus- transaction, as a receipt of money, and sue for al of the court to exclude the entire deposi- it as such.”. Barnett v. Warren & Co., 82 Ala.

557, 2 South. 457. tion of W. A. De Groat. It is sufficient to say all of said testimony was not illegal, even if [7] An acceptance by the plaintiff of the any of it was, and if any of it was proper the arrangement between defendant and Willis trial court cannot be put in error for overrul- while the contract was in force could well be ing the general motion. For like reason the implied from the letter to defendant demandtrial court cannot be put in error under as- ing the payment of its claim as well as by signment of error 4, which goes generally to bringing the present suit. all of the interrogatories to witness De The case of Westmoreland v. Davis, 1 Ala. Groat.

299, is quite unlike the present one. There

1

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(100 So.) the court held there was no implied contract (and along plaintiff's' property interfered with as the defendant was a lunatic, nor was ingress and egress and were dangerous to there an express one made by one sui juris persons and animals because uninsulated, for the benefit of a third person as in the thereby proximately decreasing value of prop

erty, and that such trespass was willfully conpresent case. The judgment of the Circuit Court is af- / tinued by defendant after plaintiffs warned it

not to do so, etc., held not demurrable for misfirmed.

joinder of causes of action; things complained Affirmed.

of constituting single and continuous trespass

and injuries proximately resulting therefrom. SOMERVILLE, THOMAS, and MILLER,

2. Husband and wife n 182-Requisites of JJ., concur.

dedication of land owned jointly by husband On Rebearing.

and wife stated.

Land owned jointly by husband and wife ANDERSON, C. J. [8] It is urged upon re

may be dedicated by parol or in writing, withbearing that the trial court erred in giving out conveyance and separate acknowledgment plaintiff's charge 1, for the reason that by wife, if not part of homestead at time of there was a conflict in the evidence as to the dedication. exact amount due that the jury could infer 3. Homestead Ca 125Deed of land worth from a certain letter that plaintiff claimed $3,000, without separate acknowledgment by less than the amount sued for or than the wife, held admissible in action of trespass amount embraced in the statement claimed by husband and wife. to have been signed by the defendant. It is In action for trespass on land claimed by sufficient to say that the charge did not in- plaintiffs husband and wife as part of homestruct a finding for any specific amount and stead, where undisputed evidence showed that therefore left this question open for the jury it was worth $3,000 at time of conveyance to to determine. If the charge was misleading county by plaintiffs without separate convey. in this respect, it should have been explained in excluding deed so far as it affected hus

ance and acknowledgment by wife, court erred by a counter charge.

band's interest; each being entitled to ex[9] It is next insisted that while the opin- emption of only $1,000 in value. lon may be correct in holding that the plaintiff could recover under count 3, for money 4. Homestead Cw84—Each tenant in common had and received, that defendant was enti

cannot claim full exemption of joint property. tled to the general charge as to counts 1 and

While tenant in common is entitled to 2, as for an account and for goods sold. The homestead exemption, each original brief merely argued the general is not increased because of their fractional in

claim full exemption of joint property, which proposition that the facts would not sup- terests so as to make up in quantity what is port an action for money had and received, wanting in extent of ownership. and we so treated the question. It may be assumed, however, that as all three of the 5. Homestead On 125—Sale or dedication of counts were mentioned in the brief that there

part of homestead in excess of $2,000 oper.

ates as selection of remainder as homestead. was an insistence of error as to the refusal of

Where homestead exceeds $2,000 in value, the general charge as to counts 1 and 2 re

sale or dedication of excess operates as selecspectively. The trial court cannot be re

tion of remainder as homestead to exclusion Tersed for the refusal of these charges for of alienated tract. the reason that they were in effect given or

6. Homestead Om 118(3) — Conveyance covered by the oral charge, wherein the court

of

wife's interest essential to valid dedication. instructed the jury that they could not find

Owner

cannot

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Conveyance of wife's interest in homestead for the plaintiff unless the defendant agreed is essential to valid dedication thereof, to pay the claim as a part of the consideration of the trade between him and Willis.

7. Husband and wife On 129(1)-Wife held The application for rehearing is denied.

not estopped by signing of her name by

husband on deed of right of way. SOMERVILLE, THOMAS, and BOULDIN,

Wife cannot be charged by her signature placed by husband, without her knowledge or consent, on deed of right of way over land

owned by them jointly by way of equitable esALABAMA POWER CO. v. CORNELIUS

toppel, where she was ignorant of deed when

road was constructed, whether or not such et al. (6 Div. 92.)

signature was fraudulent.
(Supreme Court of Alabama. April 10, 1924.
Rebearing Denied May 15, 1924.)

Appeal from Circuit Court, Jefferson Coun

ty; Joe C. Hail, Judge.
1. Action 38(3)-Complaint in trespass

Action in trespass by W. F. Cornelius and
held not demurrable for misjoinder of caus- Nannie Cornelius against the Alabama Pow-
As of action.
Counts in trespass, alleging that poles and er Company. Judgment for plaintiff's

, and wires placed by defendant power company over defendant appeals. Transferred from the

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

D

. D.

of

JJ., concur.

.

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