Hunter v. Wood , 54 Ala. 71 ( 1875 )

MANNING, J.

The error assigned upon a supposed judgment of the circuit court, sustaining a demurrer to the plea, is not properly presented by the record of this cause. The transcript of the minutes of the court, where only such judgment can legally appear if it was rendered, does not contain it; and it cannot be shown by a recital that it was rendered, made in the bill of exceptions.—Petty v. Dill, 53 Ala. 641.

The demurrer is a part of the pleading in the suit, and the decision of the court, whether sustaining or overruling the demurrer, should appear in the record as regularly made, whether any bill of exceptions be taken or not, and should not be set forth in any bill of exceptions.

Interest runs on a note payable on demand only from the time when demand is made, or suit upon it brought.—Maxey v. Knight, 18 Ala. 300; Dodge v. Perkins, 9 Pick. 369; Brefogle v. Beckley, 16 Serg. & R. 264; Dillon v. Dudley, 1 Marsh. (Ky.) R. 66. And it makes no difference that the note was given, as this one seems to have been, for money received at the time it was made.—Schmidt v. Limehouse, 2 Bailey, 276; Pullen v. Chase, 4 Pike (Ark.) 210.

The court, therefore, erred in its instructions to the jury, that plaintiff below was entitled to interest from the day next after the date of the note, and in refusing the second charge asked on behalf of defendant below.

It was not error to refuse the third charge asked for defendants below. It has been long settled, whether logically or not, that suit on a note payable on demand may be brought without a previous request of payment, the bringing a suit being itself considered a lawful demand.—Maxey v. Knight, supra; Hunt v. Nevers, 15 Pick. 500; Wells v. Abernathy, 5 Conn. 222.

As we suppose that upon a re-trial of the cause, express evidence will be given on the subject of demand, it is unnecessary to consider whether the credits on the note can be regarded as evidence of a demand of more than was paid.

Judgment reversed, and cause remanded.