ÆäÀÌÁö À̹ÌÁö
PDF
ePub

(100 So.)

served. On September 2, 1922, the petitioners | operated upon the entire board of revenue, amended their petition by alleging that re- and required that all of its members be made spondent had failed to record on the minute parties respondent to the petition. book of the board within 90 days from the Thereupon petitioners amended their petiadjournment of said meeting of May 9th, as tion by making all the members of the board it was his duty to do, the acts and doings of parties respondent, on August 23, 1923; and the board thereat, and had failed to so re- also by setting up the alleged proceeding of cord the allowance of said claim; and they disallowance; alleging ignorance of its exist. amended the prayer appropriately to require ence until informed of it by respondent's anrespondent to record its allowance in the min-swer denouncing it as void for want of jurisutes, or on the minute book, of the board. | diction, and praying that it be expunged from This amendment was covered by the terms of the records of said board of revenue. the alternative writ, already issued, requiring respondent to so record.

Respondent's answer denied that the records or minutes of the board showed any allowance of petitioners' claim as alleged; that it had not been passed on or allowed; and denied his authority "to register said claim and issue said warrant."

Demurrer being sustained to this answer, respondent filed several successive answers, setting up in substance the following: That petitioners' claim was personally presented to the board by F. W. Hare, one of the petitioners, and upon his advice, "and with practically no consideration and deliberation, the board of revenue voted three to one to allow said claim; that on the same date, and soon after the adjournment of said meeting of the board, respondent was advised by a member of said board that one of the members of said board, who had voted for allowing said claim, had considered the matter, and had reached the conclusion that he had acted too hastily in voting for the allowance of said claim, and desired to change his vote in order that the consideration of the claim might be continued to a subsequent meeting of the board in order that a proper investigation might be made by the board as to the reasonableness of the claim, and the propriety of allowing same for the amount claimed"; that under these conditions he did not record the proceeding, nor register the claim, nor issue a warrant therefor; that at a subsequent meeting said Hare appeared before the board and requested action on the claim, but none was taken; "but thereafter, on August 14, 1922, at a regular meeting of said board, said claim was taken up, considered and formally disallowed"; that two members voted for and two against allowance, and respondent cast the deciding vote against it; and this action is set out fully on the minutes of the board of said meeting.

The answer admits that petitioner demanded of respondent that he do the several things sought to be compelled by the petitioner, before it was filed.

The alternative writ was thereupon issued to the several respondents, and respondents Fountain, Carter, and Pearson moved to strike the amendment from the file on the grounds, substantially: (1) That it effected a complete change of parties respondent; (2) that it presented an entire change of the cause of action; and (3) that it sought to bring within the cause for relief a matter of record which was not in existence when the original petition was filed.

This motion being overruled, a demurrer was filed to the amended petition, on various grounds which are stated in the opinion. This demurrer being overruled, the three respondents named above answered the writ, repeating the substance of the former answer; denying that there was any "formal employment" of petitioners in the matter of the bond issue, but admitting that they performed the services claimed for; asserting that after the discussion of the matter of the allowance of the claim between the two members of the board and the president, they agreed that it was improvident, and “that the proceedings of said board should not be made to show an allowance of said claim, but that the matter should be left open for further consideration."

The answer admits that demand was made upon Judge Fountain for the doing of the several things in issue, but denies that de mand was made on the other members of the board, and denies that any demand was ever made on any of them to expunge the record of disallowance (of August 14, 1922) from the minutes of the board.

Demurrer was filed to this answer on October 5, 1923, and on the same day respondents filed their motion to transfer the cause to the equity side of the court. This motion, was overruled, and the demurrer to the answer was sustained.

Respondents declining to plead further, a peremptory writ was issued, with judgment final for the petitioners.

From this judgment respondents appeal, and assign for error the several rulings and judgments recited above.

Barnett, Bugg & Lee and R. L. Jones, all of Monroeville, for appellants.

Demurrer was sustained to this answer, and, respondent declining to plead further, a peremptory writ was issued, and judgment was rendered thereon. Thereupon respondent appealed to the Supreme Court, and on that appeal (210 Ala. 51, 97 South. 59) the judgment and order of the circuit court was SOMERVILLE, J. [1] The question of reversed on the ground that the relief sought | primary importance presented by the record

Powell & Hamilton, of Greenville, for ap pellees.

in this case is upon the right of the petitioners to compel the board of revenue of Monroe county to have entered upon its minutes the record proper of its proceedingsthe fact that the claim of petitioners was duly filed and duly allowed by the action of a majority of the board.

That the claim was regularly allowed, and a sufficient written memorial made thereof, and that the term was terminated by adjournment of the board without rescinding that action, are admitted facts as to which there can be no dispute.

On the former appeal of this case (Fountain, Probate Judge, etc., v. State ex rel. Hybart et al., 210 Ala. 51, 54, 97 South. 59, 61), we said:

"The question at hand is whether in the circumstances shown by the record before the circuit court mandamus was the proper remedy for the enforcement of the performance by the probate judge of all or any of the duties just enumerated. It is conceded that upon the facts shown by the pleadings the order allowing relators' claim on May 9th should have been spread upon the minutes of the board of revenue."

There is no question but that it was the duty of the probate judge as president of the board-a mandatory duty imposed by section 3314 of the Code-to enter upon the minutes of the board a record of the allowance of petitioners' claim.

"After the commissioners' court has audited and allowed a claim it has not capacity [at another and later session] to retract. It may not recall the admission of indebtedness it has made, and deprive the party holding the claim of the force the law attaches to its audit and allowance." Commissioners' Court v. Moore, 53

Ala. 25.

Very clearly, then, petitioners acquired a valuable right by the action of the board of revenue in auditing and allowing their claim. But "the allowance of a claim must be matter of record. A court of record speaks only through its records. A written memorial is the only evidence which other courts can receive of its proceedings, whether it is of the exercise of judicial power, or of mere ministerial authority and duty." Speed v. Cocke, 57 Ala. 209.

legal right to proceed by action at law to the enforcement of their claim is to beg the question entirely; for in that case the wrongful refusal to make the records of the board show the admission formally and irrevocably made by the board would compel petitioners to proceed without the advantage of the record evidence in support of their claim to which they are clearly entitled. In short, the relief here sought is not merely the enforcement of petitioners' claim, but primarily to enforce their right to record evidence showing prima facie its existence and validity.

[2] The amendment to the petition was properly allowed. It did not work an entire change of parties. The original petition and writ were against Fountain as probate judge, and also as ex officio president of the board of revenue. Under the amended petition he remained a party in the same capacities, and the bringing in of other members of the board as necessary parties did not change the character or purpose of the proceeding. [3] Nor did the addition of the averments and prayer with respect to the expunction of the void action of disallowance from the records of the board render the petition or the writ subject to demurrer or other form of objection upon the theory that the amendment must relate back to the filing of the original petition, and that the right to that particular relief was then nonexistent. relief by expunction, as sought by the amendment, was not of the substance of the relief primarily sought. It was ancillary merely to the main relief, and designed to make that relief more effective and complete, by removing a conflicting and improper memorial. The prayer for expunction might have been disregarded entirely, without in any way affecting the result.

The

In may be noted in passing that these objections were made by demurrer to the amended petition. The usual practice, it seems, is to regard the alternative writ as the first pleading in the cause (Longshore v. State ex rel. Turner, 137 Ala. 636, 34 South. 684; Garrett v. Cobb. 199 Ala. 80, 74 South. 226; 26 Cyc. 426; 18 R. C. L. 340); and to address objections for insufficiency to the writ and not to the petition. (State ex rel. Dox v. Board, 10 Iowa, 157, 74 Am. Dec. 381; Dane v. Derby, 54 Me. 95, 89 Am. Dec. 722; 18 R. C. L. 349, § 305; Tapping on Mandamus, 362; 26 Cyc. 464, 465). Whether this practice has been changed by section 4864 of the Code we need not now determine.

Hence there is no escape from the conclusion that the right acquired by petitionersevidenced as it was by a written memorial of the action of the board, sufficient in itself to call into exercise the statutory duty of its recordation is a clear legal right which cannot be nullified and defeated by either [4] The demand made by petitioners on the failure of the probate judge to perform Judge Fountain, as president of the board, his duty, or by the subsequent action of the to do the several things embraced by the board in attempted rescission. The right, writ, was a sufficient demand upon the to be practically effective, must be supported | board. It was not necessary to repeat this by formal record evidence; and petitioners demand to every member. 19 A. & E. Ency. have no remedy to make their conceded Law [2d Ed.] 762, citing Chumasero v. right effective except by the mandatory pro- Potts, 2 Mont. 255. Moreover, as to those cess here invoked. matters, as well as to the matter of expunc To say that the board's subsequent action tion, it appears with sufficient certainty, we of disallowance gives to petitioners a clear | think, that any demand for such action would

(100 So.)

have been unavailing and useless, in view of the conduct and proclaimed opinion of the majority members of the board, evincing a settled purpose not to perform. In such a case the law does not require a demand. 26 Cyc. 182, and cases cited in notes 16 and 17. [5] Again, as to the recordation of the act of allowance, it being a duty specifically enjoined by law, the authorities hold that demand for performance, before suit, is not required. 26 Cyc. 182.

[6] The action of the trial court in denying the motion of respondents to transfer the cause to the equity side of the court is not reviewable on appeal; however, the question may be raised or presented, and the assignment of error in that behalf is without merit. Pearson v. City of Birmingham, 210 Ala. 296, 97 South, 916.

We have considered all of the questions raised by appellants, and find no error for

reversal.

"Power of Attorney.

"Know all men by these presents, that Oliver Z. Cornelius, private in Troop 1, 3d U. S. Cavalry, late of Blount county, Alabama, has made, constituted and appointed and by these presents do make, constitute, and appoint, Rufus H. Cornelius my true and lawful attorney, for me and in my name, place, and stead to claim, take possession of any real or personal estate belonging to me, and to receive and receipt for all my interest and share of the estate of the late William M. Cornelius, deceased, in said Blount county, Alabama, hereby vesting my said attorney with the power to receive and receipt for any and all moneys due to me in said county, to take possession of, sell and convey, make and convey title to any real estate, to maintain suits and defend suits in law or equity for the recovery and possession of same, giving and granting unto my said attorney full power and authority to do and perform all and every act to be done in and about the premises, as fully to and thing whatsoever requisite and necessary all intents and purposes as I might or could do if personally present at the doing thereof, with full power of substitution or revocation, hereby ratifying and confirming all that my said attorney or his substitute may or shall lawfully do, or cause to be done, by virtue hereof. In witness whereof I have hereunto set my hand and seal this the 9th day of December, 1911. Oliver Z. Cornelius. [Seal.] The State of Texas, County of Webb. Before me, John L. Donnel162.)ly, a notary public in and for Webb County, Texas, on this day personally appeared Oliver 1924. Z. Cornelius, to be the person whose name is subscribed to the foregoing instrument, and acknowledge to me that he executed the same 10(2)-Execution of for the purpose and considerations therein expressed. Given under my hand and seal of office this 9th day of December, 1911. John L. Donnelly, Notary Public, Webb County, Texas. [Official Seal]."

The order and judgment of the circuit court will be affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.

CORNELIUS v. MOORE et al. (6 Div.
(Supreme Court of Alabama. May 22,
Rehearing Denied June 26, 1924.)

1. Principal and agent
power of attorney held binding.

Whether or not acknowledgment to a power of attorney substantially met requirements of statute as to form was immaterial where principal in fact signed the power, and in any event the signature of acknowledging officer would suffice as to an attestation.

2. Principal and agent 103(10)—Power of attorney to brother to sell land held to authorize acceptance of part cash and balance

in notes.

Power of attorney to brother to sell land held sufficiently broad to authorize agent to accept part of purchase price in cash and balance in notes.

3. Infants 6-Minor authorized to act as agent for brother could so act.

Independently of a decree made pursuant to Code 1907, § 4505, removing disability of nonage of one under 21, a minor authorized by his brother to act for him under a power of attorney could so act.

Ray & Cooner, of Jasper, for appellant. Russell & Johnson, of Oneonta, for appellees.

in an ejectment suit for the recovery of a GARDNER, J. This litigation originated tract of land in Blount county, brought by Jane Cornelius, widow of William Cornelius, and her sons, Oliver and Rufus H. Cornelius, against B. T. Moore and E. B. Ricketts. The defendants in the ejectment suit had purchased the property from the said widow and her sons, the only heirs of said William. Cornelius, but in the body of the deed the name of Oliver Z. Cornelius did not appear. The defendants in the ejectment suit petitioned the court for a removal of the cause to the equity docket, which was done, and filed this

Appeal from Circuit Court, Blount County; bill for a reformation of the deed upon the O. A. Steele, Judge.

ground that the name of Oliver Z. Cornelius was omitted from the body of the instrument by inadvertence or mistake of the draftsman. The deed was executed on the part of Oliver

Bill to reform a deed by B. T. Moore and E. B. Ricketts against O. Z. Cornelius. Decree for complainants, and respondent ap- Z. Cornelius by his brother, Rufus H. Corpeals. Affirmed.

See, also, 203 Ala. 237, 94 South. 57.

The power of attorney executed by O. Z. Cornelius to Rufus H. Cornelius is as follows:

nelius, acting under power of attorney.

The answer of the respondent Oliver Z. denies the power of attorney was legally executed, and, further, that Rufus H. Cornelius was at the time under the age of 21 years,

and that in any event the power of attorney did not authorize the said Rufus H. Cornelius to sell his interest in said land except for cash, or to collect the proceeds of the sale unless the same were paid in cash to him.

Testimony was taken for the respective 'parties, and upon submission of the cause for final decree the chancellor rendered a decree of reformation of the deed as prayed for in the bill, from which decree the respondent has prosecuted this appeal.

[1] It appears without dispute that complainant paid for this land the sum of $2,500, $500 of which was cash, and the balance by notes secured by a mortgage on the property, each of which was subsequently paid. The deed was executed in December, 1912, while the respondent Oliver Z. Cornelius, was in the military service of the United States stationed in the state of Texas. Previous to the execution of the deed the said Oliver Z. had executed a power of attorney to his brother, Rufus H. Cornelius, by virtue of which power of attorney the said Rufus H. had signed the name of Oliver Z. to the deed executed to these complainants. Whether or not the acknowledgment to the power of attorney substantially meets the require ments of our statute as to form we need not stop to inquire, as the respondent's evidence shows without conflict that he in fact signed the power of attorney; and, in any event, the signature of the acknowledging officer would suffice as to an attestation.

[2] The said Oliver Z. received no part of the purchase money, and it is strenuously in, sisted that his attorney in fact in the transaction here in question went beyond the scope of his authority, which was known or should have been known to these complainants.

Counsel for appellees argue in response to this insistence that the power given in the power of attorney is broad and comprehensive, and that respondent's brother, Rufus H., acted in the premises as was contemplated by the respondent, and all those interested in the transaction. This was the conclusion reached by the chancellor, and from a review of the record we are persuaded that this finding is correct.

The power of attorney is to be construed in the light of the surrounding facts and circumstances, and in view of the purposes to be accomplished thereby. Brantley v. Life Ins. Co., 53 Ala. 554. It is broad and comprehensive, and after giving authority for the sale of the respondent's interest in the estate uses the language:

"Giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might or could do if personally present at the doing thereof, with full power of substitution or revocation, hereby ratifying and confirming all that my said attorney or his substitute may or shall lawfully do or cause to be done by vir

The power of attorney was sent respondent not by his brother, Rufus H., but by his mother, Jane Cornelius, accompanied by a letter requesting his signature, and informing him of some incumbrance upon the land, the exact nature and amount of such incumbrance not being disclosed by the evidence.

The transaction as to the sale of this property to these complainants seems to have been consummated through the respondent's mother, Jane Cornelius. A considerable portion of the purchase money appears to have been expended in the extinguishment of these incumbrances, the remainder being paid to respondent's mother, who seems to have given some of the funds to her son Rufus H. The respondent and his brother Rufus H., his attorney in fact, had no communication with each other in regard to this transaction, the entire matter being left with the mother. The complainants received no intimation of any claim against the property until the fall of 1919, when the ejectment suit above referred to was brought.

The evidence of the draftsman of the deed shows very clearly that the respondent's name was omitted from the body thereof merely by an oversight, and, so far as this feature of the bill is concerned, the evidence fully meets the requirements of the rule as to reformation of written instruments. The son, Rufus H., evidently knew and understood as to the sale of this land, and this respondent must have known that a sale of the land was deemed necessary by the mother to accomplish the desired purposes, and that he complied with his mother's request, and for her use and benefit forwarded the power of attorney to her in order that she might deal with the matter as she thought wise and proper.

The power of attorney therefore is to be construed in the light of the relationship existing between the parties, and the facts and circumstances showing the purpose of its execution. When so considered, we are of the opinion that the respondent's brother, Rufus II., acted in the premises as he was authorized to act by the respondent when he (Oliver Z.) forwarded the power of attorney to his mother. Our conclusion in this respect is further strengthened by the fact that the respondent for a number of years after the execution of the power of attorney and a sale of the land seems to have made no inquiry in regard to his interest in the proceeds of the sale or made any complaint in respect thereto, and during these years the complainants appear to have been in the unmolested control thereof.

[3] At the time of the execution of the power of attorney it appears that Rufus H. Cornelius was under 21 years of age, but his disabilities of nonage had been removed by virtue of the decree of the chancery court. Section 4505, Code 1907, expressly authorizes such decree either by the chancery court in term time or the chancellor in vacation, and

(100 So.)

tional averments. It would seem on col- er, and of operating a lumber yard and lumber lateral attack, at least, the decree was suffi- planing mill which constituted the plant of the cient; but this is unnecessary to be deter- said Riverside Manufacturing Company, and mined, for Rufus H., although a minor, was was situated upon the bank of Mobile river at or near the foot of Madison street, in the city authorized to act as agent for his brother of Mobile, and, that in his said business he was under the power of attorney which was exe-regularly receiving large shipments of lumber cuted. Sims v. Gunter, 201 Ala. 286, 78 by barges docking at the wharf in front of or South. 62; 14 R. C. L. 221. adjoining his said plant, said barges being towed or brought to said wharf by tugs or other tow boats.

We are of the opinion the decree of the chancellor is correct, and will be accordingly here affirmed.

Affirmed.

"(3) That the defendant in his said business was regularly employing more than 16 employees, and that he had elected to become sub

ANDERSON, C. J., and SAYRE and MIL- ject and was subject, in his relation with his LER, JJ., concur.

Ex parte HAVARD. (I Div. 290.) (Supreme Court of Alabama. Jan. 31, 1924. Rehearing Granted May 29, 1924. Further Rehearing Denied June 30, 1924.)

On Rehearing.

Admiralty 21 Employee held engaged in nonmaritime service when injured.

said employees, to part 2 of the Workmen's Compensation Act of the state of Alabama.

"(4) That on, to wit, the said 24th of August, 1922, Fritz R. Havard, the husband of the plaintiff, was regularly in the employ of the defendant in the usual course of the defendant's said business, being employed by the defendant in that business in the capacity of lumber inspector and grader, and that the average weekly earnings of the said Fritz R. Havard in his said employment by the defendant were $30 per week, and that thè defendant and the said Fritz R. Havard in their said relation of employer and employee were at the time of the death of the latter, as hereinafter set forth, subject to the provisions of part 2 of the Workmen's Compensation Act of Alabama.

Death of employee, whose employer had elected to become subject to Workmen's Compensation Act, while grading and tallying lumber being unloaded from barge to dock at employer's planing mill, held compensable under such act, though he was on schooner moored alongside of barge in navigable river when injured. Miller and Thomas, JJ., and Anderson, C. J., in addition to claimant, his widow, who was redissenting.

Certiorari to Circuit Court, Mobile County; Saffold Berney, Judge.

Suit by Eva J. Havard against G. M. Rosengrant, for compensation under the Workmen's Compensation Act for the death of Fritz R. Havard, employee of defendant. Judgment for defendant, and plaintiff brings certiorari. Reversed and remanded.

The amended complaint, excepting section

5, reads as follows:

"Eva J. Havard files this her complaint against G. M. Rosengrant, doing business under the name and style of the Riverside Manufacturing Company, under the Workmen's Compensation Act of the state of Alabama, and respectfully shows unto the court as follows:

"(1) That she is the widow of Fritz R. Havard, deceased, and is a resident of the city and county of Mobile, state of Alabama, and resides at and her address is 1083 Spring Hill avenue, Mobile, Ala., and that she is over the age of 21 years, and that the defendant, G. M. Rosengrant, who, at the day of the death of her husband, as hereinafter set forth, was doing business under the name and style of the Riverside Manufacturing Company, is over the age of 21 years, and is a resident of the city and county of Mobile, and has his place of business on Mobile river at or near the foot of Madison street, in Mobile, Ala.

"(2) That on, to wit, August 24, 1922, the defendant, G. M. Rosengrant, was engaged under the name and style of the Riverside Manufacturing Company, in the business of lumber deal

100 SO.-57

"(5) [This section appears in the opinion of Justice MILLER.]

"(6) That the said Fritz R. Havard at the time of his death had the following dependents

siding with him as his wife until he died, viz.: Fritz R. Havard, Jr., aged eight years, and Ralph W. Havard, aged six years, who now reside with claimant, their mother, and who are the minor children of claimant and the said that she and her said two children were wholFritz R. Havard, deceased. And she alleges ly dependent upon the said husband and father, Fritz R. Havard, at and until the time of his injury and death.

"(7) That she has given notice of said accident to the said employer as required by the Workmen's Compensation Act of Alabama, and within the time prescribed by said act, but that the said employer has wholly failed to pay the compensation provided by the said act, and still refuses to pay.

"Wherefore, the premises considered, claimant shows unto the court that she is entitled to receive from the defendant, G. M. Rosengrant, doing business under the name and style of the Riverside Manufacturing Company, on behalf of herself and her said minor children, the compensation provided by part 2 of said Workmen's Compensation Act and she therefore prays the said G. M. Rosengrant, doing business under the name and style of the Riverside Manufacturing Company, be made a party defendant to this her complaint, and that this court will make an order fixing the time and place for the hearing of her said complaint, and that the said defendant be required to file a verified answer to this complaint, setting up the facts, if any, upon which it relies in defense hereof; and she prays that upon the hearing of this matter a decree will be entered granting her said compensation and such other and further or different decree, order, and relief as she

« ÀÌÀü°è¼Ó »