Collins v. Hammock , 59 Ala. 448 ( 1877 )

STONE, J.—

Bankruptcy, and discharge under it, being in their nature a personal defence, must be pleaded in the court trying the cause; and if not so pleaded, are considered waived, and the judgment is as binding on the bankrupt, as if he had received no discharge.—Ewing v. Peck & Clark, 17 Ala. 339.

We consider it unnecessary to decide, in this case, whether Judge Haralson had such au interest in the cause as disqualified'hi m from presiding at the trial. No objection, on account of his interest, was raised on the trial; and it is raised, for the first time, on the motion to quash the execution and vacate the judgment, made several years after the judgment was rendered. This, then, is a collateral attack.

In Freeman on Judgments, section 145, it is said: “ While it is well settled by the common law, that no judge ought to act where, from interest or from any other cause, he is supposed to be partial to one of the suitors, yet his action in such a case is regarded as an error or irregularity, not affecting his jurisdiction, and [subject] to be corrected by a vacation or reversal of his judgment, except in those inferior tribunals from which no appeal or writ of error lies. If the facts are known to the party recusing, he is bound to make his objection before issue joined, and before the trial is commenced, otherwise he will be deemed to have waived the objections, in cases where the statute does not make the proceedings void.” We do not think Judge Haralson's bias, if' he had any, was such an interest, “ direct and immediate,” as to bring the case within our statute.—-Code of 1876, § 540; Ellis v. Smith, 42 Ala. 349; Hine v. Hussey, 45 Ala. 496; Hayes v. Collier, 47 Ala. 726; Newman v. The State, 49 Ala. 9.

The remaining question relates to the legality of the appeal bond. It is contended that the bond in this case is not the bond of the party applying for the appeal, and that therefore,, no judgment could be rendered upon it as a statutory obligation.—Code of 1876, § 3854. The bond is in the following form :

“ Know all men by these presents, that we John C. Stanton as superintendent of the Alabama and Chattanooga Railroad Company, Lemuel J. Standifer, Henry C. Haralson, Joseph Hoge, and Alfred Collins, are held and firmly bound unto-William N. Hammock in such sum as may be adjudged against them in the Circuit Court of said county by reason of the said Alabama and Chattanooga Railroad Company taking an appeal from a judgment rendered by A. F. Payne as a justice of the peace on the fourth of this instant in favor of said Wm. N. Hammock for twenty-five dollars, besides cost of suit against said railroad company. . . .

“Now, if the said A. & C. R. R. Co. shall well and truly pay all such costs and damages as may be rendered against, said company in said Circuit Court, &e.

“(Signed,) John C. Stanton, Sup’t

of A. & C. R. R. Co. [seal,]”

followed by the other names above, with scrolls attached as ■seals.

In the case of Drake v. Flewellen, 33 Ala. 106; May v. Hewitt, ib. 161, and in many other cases, collected in 1 Brick. Dig. pp. 60, 61, we considered the prima facie intendments of contracts, signed in ambiguous form, such as the present is, and their susceptibility of explanation, on pleadings and proof. In the former case we said, “ The note copied in the bill of exceptions imposes, prima facie, a personal liability on the defendant. That personal liability, however, can be shifted by pleadings and proof.” In Lazarus v. Sharer, 2 Ala. 718, this court said, “ Where it is doubtful from the face of the contract, whether it was intended to operate as the personal engagement of the party signing it, or to impose an obligation on some third person as his principal, parol evidence is admissible to show the true character of the transaction.” In McWhorter v. Lewis, 4 Ala. 198, the contract was for the payment of money—“I promise to pay”— and was signed “ A. A. Me. President W. & Coosa B. B. Company.” The suit was against McWhorter individually, and he sought to defend on the ground that the note was a debt of the corporation, and not his own personal contract. This court ruled his defence insufficient, because he attempted to make it without a sworn plea; but held that on such verified plea, the defendant could “ defend himself against an action-charging him personally, by proving that the note was made for and on account of the corporation, in virtue of an authority for that purpose, 'and so accepted by the payee.”

In May v. Hewitt, supra, the language of this court is, “ When it is doubtful from the the face of a contract, not under seal, whether it was intended to operate as the personal engagement of the party signing, or, to impose an obligation on some third person as his principal, parol evidence is admissible to show the true character of the transaction.” Whether it was the intention of this language to draw a distinction between money obligations under seal, and those not under seal; or whether it was intended to shield sealed instruments of all clases from dangerous exposure to parol proof, we need not inquire in the present case. No attempt was made, or deemed necessary, to explain the character of the bond we are construing. The bond itself, we think, by its recitals, furnishes its own interpretation. It affirms that the ■.appeal was taken by the Alabama and Chattanooga Bailroad Company, from a judgment rendered against said corporation; ■and its condition is to pay “ all such costs and damages as may be rendered against said company.” The right to execute a bond in judicial proceedings, is one of the incidental powers of all corporations that can sue or be sued. The signature of Stanton, was but the signature of tbe corporation through him—tbe corporation being incapable of doing a manual act. The authorities we have cited above clearly show that the form and manner of the signature are not conclusive of the question of personal contract vel non, and we hold that the recitals in this bond stamp it as tbe contract of the corporation.

We find no error in tbe record, and tbe judgment of the Circuit Court is affirmed.