(100 So.) Appeal dismissed. ANDERSON, C. J., and SAYRE and erned by section 2855, and prosecuted the 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 construction of our statute, so as to arrive at the true legislative intent. The general rule as to such construction applicable to 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: "Special provisions relating to specific subjects control general provisions relating to gen eral subjects. The things specially treated will be considered as exceptions to the general provisions." MILLER, JJ., concur. (Supreme Court of Alabama. April 10, 1924. Rehearing Denied May 15, 1924.) 1. Exceptions, bill of 41 (1)~Compliance with statute as to time of presenting bill essential to its validity. A compliance with Code 1907, § 3019, rel In City Council of Montgomery v. Bldg. & Loan Ass'n, 108 Ala. 336, 18 South., 816, the same principle of construction is found stated in the following quotation there ap-ative to time within which a bill of exceptions proved: must be presented to the trial judge and the bill. signed by him, is essential to the validity of "When the law descends to particulars, such more special provisions must be understood as exceptions to any general rules laid down to the contrary; and the general rules must not (vice versa) be alleged in confutation of the special provisions." [2] So, in the instant case, applying this rule of construction, we find that the Legislature has made special provision as to appeals in cases of this character, with a limitation as to time of 20 days. It is readily seen from an examination of these provisions that the entire legislative scheme looked to a speedy determination of all questions relating thereto, and we think it would be entirely out of harmony with the legislative intent to hold that appeal was also provided under section 2855 of the Code, where the cause might be carried first to the circuit court and then on to the appellate court, with the limitation of time as prescribed for such appeals. The stipulation for the prosecution of the appeal within 20 days under section 4216 itself indicates the legislative intent for an early determination and final settlement of such matters; and we are persuaded that this section controls as to the matter of appeals under article 4 of chapter 86 of our Code. There is ample room for the operation of section 2855 in all cases of final decrees not otherwise specially provided. The provisions of this latter section are general, but those concerning appeals in matters of this character are special provisions, treating this particular subject. These special provisions therefore are to be understood as exceptions to the general rule, by which we must here be controlled. The appeal in the instant case was not taken pursuant to section 4216 of the Code, in the manner and within the time therein 2. Exceptions, bill of 50-Bill presented to judge in another state where he approved it held void as not a "presentation." Bill of exceptions which instead of being filed with the clerk of the court during the judge's absence, as required by Acts 1915, p. 816, was mailed to the judge in another state, where he approved it, held void as not being a "presentation" within Code 1907, § 3019. and Phrases, First and Second Series, Pre [Ed. Note. For other definitions, see Words ent-Presented-Presentation.] 3. Removal of causes 79(1) - Elimination sion of evidence upon request of resident de- If a complaint was demurrable as for mis- 5. Appeal and error 655(1)-Supreme Court must ex mero motu strike bill of exceptions not presented to judge as required by statute. Where bill of exceptions was not presented to judge as required by Code 1907, § 3019, and Acts 1915, p. 816, Supreme Court must strike bill ex mero motu, on theory presentation of bill is jurisdictional; Code 1907, § 3020, forbidding striking by court ex mero motu, not applying. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 the cause then removable and thereby to Action for damages for malicious prosecution 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. Ct. 248, 44 L. Ed. 303. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Affirmed. Stokely, Scrivner, Dominick & Smith, of Birmingham, for appellant. Bowers, Dixon & Bowron, of Birmingham, for appellee. ANDERSON, C. J. [1, 2] Section 3019 of the Code of 1907 requires the presentation of a bill of exceptions to the trial judge within 90 days from the day on which the judgment is entered and not afterwards, and if correct must be signed by him within ninety days after said presentation. A compliance with the statute as to presentation is essential to the validity of the bill of exceptions. 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 so noted by him, and the proof negatives any other presentation to him or the filing of same with the clerk within 90 days during the absence of the judge, as provided by Acts 1915, p. 816. While we have several authorities to the effect that the jurisdiction and powers of a circuit judge are coextensive with the boundaries of the state, and he can receive and approve a bill of exceptions in any county in the state, we have none holding that he can do so beyond the limits of the state. Bruce v. McMillan, 175 Ala. 416, 57 South. 486; Ex parte Nelson, 62 Ala. 376. Indeed it was not contemplated that a circuit judge could perform this or any other official act in another state, as Acts 1915, p. 816, makes provision for filing same with the clerk when the judge is out of the state. We are constrained to strike the bill of exceptions, which is accordingly done. [3] The suit was for a joint tort against the Southern Railway, a nonresident, and one Cameron, a resident of Alabama, and the defendant Southern Railway petitioned for a removal of the cause to the federal court, which said petition was denied and as to which the appellant does not insist upon error. After the conclusion of the evidence, however, the trial court, upon request, gave the affirmative charge for the defendant Cameron, whereupon the Southern Railway renewed its petition for removal upon the theory that Cameron had, in effect, been eliminated, leaving it, a nonresident, the sole defendant, and insistence is made that the trial court erred in denying the last petition for removal. This was a ruling on the merits and not a ruling on the question of ju [4] It also is insisted that the complaint was subject to defendant's demurrer as for a misjoinder of the Director General of Railroads and the Southern Railway Company. Whether this was error or not we need not decide, for, conceding that it was, only for the purpose of deciding this case, it was rendered harmless by an amendment to the complaint striking out the Director General as a party defendant. The judgment of the circuit court is affirmed. Affirmed. the court should, not decline to consider the ANDERSON, C. J. [5] It is urged that bill of exceptions because no motion was made to strike the same upon the submission of the cause to the Court of Appeals, which said cause was transferred to this court under the Acts 1911, p. 449. True, section 3020 of the Code of 1907 forbids striking a bill of exceptions by the court ex mero motu, except upon a motion seasonably made, because not signed in time; but, as heretofore held, this section does not apply to a failure to present the bill as required by section 3019 of the Code and Acts 1915, p. 816, as this is jurisdictional, and the point must be taken whether a motion to strike was or was not made upon the submission of the cause. Box v. So. R. R., 184 Ala. 598, 64 South. 69; Hartselle & Co. v. Wilhite, 3 Ala. App. 612, 57 South. 129. It is next insisted that under the early case of Collier v. State, 2 Stew. 388, the indorsement of the presentation was a clerical or ministerial act, which could be performed beyond the jurisdiction of the officer making the indorsement. This Collier Case was one in which the facts done and required were in the proper county and the clerk certified to same in another county. Here we the state, but the physical presentation of not only have a certificate made outside of the bill outside of the state, and the propriety of such a presentation is, in effect, contrary to the statute, which expressly provides for filing same with the clerk when the judge is out of the state. The rehearing is overruled. SOMERVILLE, THOMAS, and BOULDIN, (100 So.) FARRELL v. ANDERSON-DULIN-VAR- (Supreme Court of Alabama. April 17, 1924. Rehearing Denied May 15, 1924.) Upon Rehearing. 8. Trial 256(6)-One complaining of charge as misleading should request explanatory charge. Where evidence conflicting in assumpsit as to exact amount due, if charge open to construction that jury are directed to find some specific I. Account, action on 11-Bookkeeper's af- amount, an explanatory charge should be refidavit held sufficient to render account admissible. An affidavit by plaintiff's bookkeeper attached to statement of account stating that affiant "has personal knowledge of correctness" of the account due, his employer adding "as he verily believes," showed sufficient personal knowledge to render the account admissible under Code 1907, § 3970, as amended Act 1915, p. 609. 2. Depositions 64 (3)-Answer to question held not objectionable as not responsive. Answer, to question as to whether witness knew of his "own personal knowledge that J. was indebted to plaintiff at time of said transaction," that "J. was indebted to plaintiff at time transaction took place" held not objectionable as not responsive. 3. Depositions 110-Refusal of general motion to exclude entire deposition cannot put court in error, if partially competent. Refusal of a general motion to exclude an entire deposition, or to exclude all interrogatories to a witness, cannot put trial court in error, if any of the testimony is competent. 4. Appeal and error 1050(1) Whether vendee assuming debts had paid other creditors instead of plaintiff held immaterial. Whether vendee of a business assuming certain debts of vendor had paid creditors whom vendor stated that he owed, instead of plaintiff, was not material where defendant had opportunity to prove that plaintiff's account was not included in his assumption of liability. Instruction hypothesizing certain facts, and directing verdict for plaintiff if jury should find them, held not to invade province of jury. 6. Contracts 187(3)-Buyer, assuming as part of consideration seller's debt to third person, held suable by latter. Where defendant, on purchasing business, as part consideration, assumed certain debts of vendor including plaintiff's debt, plaintiff, having assented to transaction, could sue for money had and received. 7. Contracts 187(5) Facts held sufficient to show acceptance by plaintiff of agreement by buyer to pay seller's debt to him. Where vendee of a business assumed vendor's debts, acceptance of the agreement by vendor's creditor, sufficient to enable him to recover from vendee, could be implied from his letter to vendee demanding payment as well as by his bringing suit. quested. 9. Trial 260(1)-No reversal for refusal of general charges covered by oral charge. Reversal cannot be had for refusal of general charges covered by the oral charge. Appeal from Circuit Court, Madison County; James E. Horton, Jr., Judge. Action in assumpsit by the AndersonDulin-Varnell Company against J. R. Farrell: Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Affirmed. The verified statement of account is as follows: "Statement Anderson-Dulin-Varnell Company, "Knoxville, Tenn., March 1, 1922. “J. R. Farrell, Huntsville, Ala. "Interest after maturity. "Personally appeared before the undersigned, a notary public in and for said county duly commissioned and sworn, D. F. Rightsell to me well known and made oath in due form of law, that the within account against J. R. Farrell amounting to ($360.20) three hundred sixty and Varnell Co., Inc., of which firm he is bookkeep20/100 dollars, is justly due Anderson-Duliner, and that he has personal knowledge of the correctness of same, after the allowance of all credits of which the said J. R. Farrell is entitled as he verily believes. "[Seal.] D. F. Rightsell. "Subscribed and sworn before me this 1st day of March, 1922. "W. A. De Groat, Notary Public." It appears that the merchandise in question was sold by the plaintiff to J. M. Willis; that Willis sold his stock of goods, including these in suit, to the defendant, a part of the consideration for the sale being defendant's assumption of certain indebtedness owed by Willis, and that Willis prepared a written statement of the debts to be assumed by de-. fendant, including that in suit, which statement was signed by defendant. Defendant denied that the account in suit was embraced in the statement signed by him. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes. Charge 1, given at plaintiff's request, is as follows: "1. If you believe from the evidence that the defendant agreed with J. M. Willis to pay the plaintiff the amounts shown on the list marked Exhibit A, to the deposition of J. M. Willis, as a part of the consideration of his trade with J. M. Willis, you must find for the plaintiff." White & Watts, of Huntsville, for appel lant. Griffin & Ford, of Huntsville, for appellee. ANDERSON, C. J. [1] The affidavit to the account was sufficient to render it admissible as evidence under section 3970 of the Code of 1907 as amended by the Act of 1915, p. 609. The affiant was bookkeeper of the plaintiff, and the affidavit sets up this fact and that he has personal knowledge of the correctness of the account after the allowance of all credits, of which the said J. R. Farrell is entitled "as he verily believes." Of course, the affidavit must be based upon personal knowledge, but we think this one shows that it was and that the same was sufficiently positive notwithstanding the addition of the words "verily believes." His belief is not based upon information, but upon his personal knowledge. "Where the essential facts have been stated positively, an additional statement of information and belief is harmless." 2 C. J. 355. Here the additional statement does not contain the word "information," but is a positive statement of belief based upon personal knowledge. Moreover, this was not the exclusive method of proving the account, and Willis proved the correctness of same in his deposition which preceded the introduction of said account. Sullivan Timber Co. v. Brushagle, 111 Ala. 114, 20 South. 498. [2] Assignment of error 3 goes to the failure of the court to exclude the answer to the following interrogatory to witness De Groat: "Do you know of your own personal knowledge that J. M. Willis was indebted to the plaintiff at the time of said transaction between himself and J. R. Farrell?" The answer was: [4] As to whether or not defendant had paid other people that Willis stated he owed was not material as the trial court offered to let him prove that the plaintiff's account was not included. [5] There was no error in giving the plaintiff's requested charge 1. It did not invade the province of the jury, but hypothesized and presented to them the real issue in the case whether or not defendant agreed as a part of the consideration of the trade to pay plaintiff the claim as embraced in the statement Exhibit A, as testified by Willis and which was denied by the defendant. [6] It is next urged, in brief of appellant's counsel, that the defendant's general charge should have been given for the reason that the proof does not justify the right to maintain an action for money had and received, that the facts do not establish an implied contract, and if there was a contract at all it was an express one between defendant and Willis to which the plaintiff was neither a party nor privy. It was held in our early case of Huckabee v. May, 14 Ala. 263, which has been often cited and followed, that, when one sold or traded a thing of value to another, and the consideration or a part thereof was the assumption of a debt owing from the vendor to a third person by the vendee, and the third person assented thereto while the promise remained in force, the third person may sue in his own name for money had and received though he may not have been otherwise a party to the contract. The price the defendant agreed to pay included the debt due from Willis to the plaintiff, and as to this extent it could have been considered in no other light than as a fund in the defendant's hand for this purpose. Having in his hands money to which the plaintiff was entitled it may declare in assumpsit for same. See, also, Moore v. First National Bank of Florence, 139 Ala. 595, 36 South. 777, and cases there cited. "A suit for money had and received is in the nature of an equitable action, and is maintainable whenever one person has money which ex 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." This was, in effect, an affirmative answer to the question and the only ground assigned for the exclusion of same was that it was "not responsive to the question." [3] Assignment of error 2 goes to the refusal of the court to exclude the entire deposition of W. A. De Groat. It is sufficient to say all of said testimony was not illegal, even if any of it was, and if any of it was proper the trial court cannot be put in error for overruling the general motion. For like reason the trial court cannot be put in error under assignment of error 4, which goes generally to all of the interrogatories to witness De shall have been received. If property, or anything else, be received as the equivalent of money, by one who assumes to cancel or dispose of a property right, for which, by contract, or liability, legal or equitable, it is his duty to account to another, the latter may treat the transaction as a receipt of money, and sue for it as such." Barnett v. Warren & Co., 82 Ala. 557, 2 South. 457. [7] An acceptance by the plaintiff of the arrangement between defendant and Willis while the contract was in force could well be implied from the letter to defendant demanding the payment of its claim as well as by bringing the present suit. The case of Westmoreland v. Davis, 1 Ala. (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 there an express one made by one sui juris for the benefit of a third person as in the present case. The judgment of the Circuit Court is affirmed. Affirmed. SOMERVILLE, THOMAS, and MILLER, JJ., concur. On Rehearing. ANDERSON, C. J. [8] It is urged upon rehearing that the trial court erred in giving plaintiff's charge 1, for the reason that there was a conflict in the evidence as to the exact amount due that the jury could infer from a certain letter that plaintiff claimed less than the amount sued for or than the amount embraced in the statement claimed to have been signed by the defendant. It is sufficient to say that the charge did not instruct a finding for any specific amount and therefore left this question open for the jury to determine. If the charge was misleading in this respect, it should have been explained by a counter charge. ingress and egress and were dangerous to persons and animals because uninsulated, thereby proximately decreasing value of property, and that such trespass was willfully continued by defendant after plaintiffs warned it not to do so, etc., held not demurrable for misjoinder of causes of action; things complained of constituting single and continuous trespass and injuries proximately resulting therefrom. 2. Husband and wife182-Requisites of dedication of land owned jointly by husband and wife stated. Land owned jointly by husband and wife may be dedicated by parol or in writing, without conveyance and separate acknowledgment by wife, if not part of homestead at time of dedication. 3. Homestead 125-Deed of land worth $3,000, without separate acknowledgment by wife, held admissible in action of trespass by husband and wife, In action for trespass on land claimed by plaintiffs husband and wife as part of homestead, where undisputed evidence showed that it was worth $3,000 at time of conveyance to county by plaintiffs without separate conveyin excluding deed so far as it affected husance and acknowledgment by wife, court erred band's interest; each being entitled to ex [9] It is next insisted that while the opin-emption of only $1,000 in value. ion may be correct in holding that the plain cannot claim full exemption of joint property. owner cannot While tenant in common is entitled to homestead exemption, each is not increased because of their fractional inclaim full exemption of joint property, which terests so as to make up in quantity what is wanting in extent of ownership. tiff could recover under count 3, for money 4. Homestead 84-Each tenant in common had and received, that defendant was entitled to the general charge as to counts 1 and 2, as for an account and for goods sold. The original brief merely argued the general proposition that the facts would not support an action for money had and received, and we so treated the question. It may be assumed, however, that as all three of the counts were mentioned in the brief that there was an insistence of error as to the refusal of the general charge as to counts 1 and 2 respectively. The trial court cannot be reversed for the refusal of these charges for the reason that they were in effect given or covered by the oral charge, wherein the court instructed the jury that they could not find for the plaintiff unless the defendant agreed to pay the claim as a part of the consideration of the trade between him and Willis. The application for rehearing is denied. ALABAMA POWER CO. v. CORNELIUS et al. (6 Div. 92.) (Supreme Court of Alabama. April 10, 1924. Rehearing Denied May 15, 1924.) 1. Action 38 (3)-Complaint in trespass held not demurrable for misjoinder of causes of action. Counts in trespass, alleging that poles and wires placed by defendant power company over 5. Homestead 125-Sale or dedication of part of homestead in excess of $2,000 oper ates as selection of remainder as homestead. Where homestead exceeds $2,000 in value, sale or dedication of excess operates as selection of remainder as homestead to exclusion of alienated tract. 6. Homestead of 1.18(3) - Conveyance wife's interest essential to valid dedication. Conveyance of wife's interest in homestead is essential to valid dedication thereof. 7. Husband and wife 129(1)—Wife held not estopped by signing of her name by husband on deed of right of way. 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 estoppel, where she was ignorant of deed when road was constructed, whether or not such signature was fraudulent. Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge. Action in trespass by W. F. Cornelius and Nannie Cornelius against the Alabama Power Company. Judgment for plaintiffs, and defendant appeals. Transferred from the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |