Johnson v. Washburn , 98 Ala. 258 ( 1893 )

STONE, C. J.

The judgment of the City Court, from which the present appeal was prosecuted, was rendered March 30, 1892. The bill of exceptions was signed May 30, 1892, precisely two months after the judgment was ren-clered. A motion is made by appellee to strike tbe bill of exceptions from tbe transcript because tbe same was signed and bears date at a time when tbe court bad no lawful authority to allow and sign tbe same. Tbe precise ground of tbis motion is made to rest on tbe language of tbe statute, “To establish tbe City Court of Gadsden,” approved February 18,1891. — Sess. Acts of 1890-91, pp. 1092-1103. Section 27 of that statute declares “That final judgments rendered in said court shall, after tbe expiration of ten days from their rendition, be taken and deemed as completely beyond tbe control of the court as if tbe term of tbe court at which said judgments are rendered bad ended at tbe end of said ten days.” There are provisos to tbis clause, but they do not directly affect tbis case. Tbe argument is, that for tbe purposes of tbis motion, tbe term of the court at which tbe judgment was rendered must be regarded and treated as having been adjourned at tbe end of ten days after March 30th, tbe date of tbe judgment; and that consequently, when tbe bill of exceptions was signed — May 30,1892, — there was no authority therefor, either under tbe statute, or under tbe order of tbe court. In tbe judgment entry of March 30th is tbis clause: “It is ordered by tbe court that the defendant be allowed thirty days from tbis date in which to have a bill of exceptions signed by tbe presiding judge of tbis court.”

"We can not assent-to tbis argument as made, for more reasons than one. First, signing a bill of exceptions is neither within tbe letter or spirit of tbe statutory prohibition. It is not, and can not be a taking of control of tbe judgment by the court. It leaves it in every sense unchanged, so far as tbe action of tbe primary court is concerned. It is simply a preparatory step towards having that judgment reviewed in an appellate court. Second, that clause, by its very terms, gives to judgments of that court, after the ten days have expired, tbe properties of a final, unalterable judgment, only to tbe extent and for tbe purposes mentioned in the statute. It does not adjourn tbe court in fact, and it makes no change whatever in tbe law affecting tbe reservation of exceptions, to rulings of tbe court which would not otherwise appear.—Harrison v. Hamner (at present term), 12 So. Rep. 917.

The motion to strike tbe bill of exceptions from tbe transcript must be overruled. Tbe statute creating said court, Sec. 5, enacts that “Begular terms of said court shall be held on tbe first Mondays in January and July in each year, and shall continue open until thirty days before the first day of the nest term thereafter.” This case was tried at the regular term of the City Court commencing on the first Monday in January, 1892, to-wit., on March 30, 1892. That term of the court continued in session until thirty days before the next regular term of that court, the first Monday in July, 1892. Such was and is the statutory mandate. The first Monday in July, 1892, was the 4th day of that month, a legal holiday in this State,- and if we exclude it from the computation, Tuesday, July 5, would be the day on which the July term would open. Thirty days before that time would necessarily be not earlier than June 5, five or six days after the bill of exceptions in this case was signed, as shown by the agreement accompanying the record. It follows that the bill of exceptions must have been signed during the term of the court at which the trial was had. The motion to strike the bill of exceptions from the transcript is, therefore, disallowed.'

We have been referred to Stein v. McArdle, 25 Ala. 561, as expressing views different from those announced above. The. language of the two statutes is somewhat different; but if that difference is not enough to require the application of a different principle, we do not hesitate to pronounce that decision wrong, and to overrule it.

This ruling, however, is unimportant in this case, as the rulings on demurrer present the same question as that shown in the bill of exceptions.

Defendant interposed three pleas in bar, to each of which plaintiff demurred. Each of these pleas sets up substantially the same defense, though varied somewhat in phraseology.

The cause of action declared on is a bond or bill single for one hundred dollars, bearing date July 30,1890, payable to Ed. Ashley or order on the 25th of December next after its date; “which bond, or bill single is now the property of plaintiff.” Plea numbered 2 avers “that the note sued on was made payable to Ed. Ashley or order, and at the time said note was made payable it was agreed that it should not be transferred, except to W. P. Shah an; and afterwards by consent of the parties to said note, in pursuance of said agreement and to carry out the same, said agreement not to transfer except to W. P. Shahan was indorsed on said note, and the indorsement was made whilst said Ashley was still owner of said note.” As we have said, this plea was demurred to. The court overruled the demurrer, and this is assigned as error.

We hold there is nothing in this defense, either as pleaded or proved. First, tbe plea itself does not negative the fact that the bill single was traded first to Shahan, and after-wards by him to Johnson who brings this suit. There is nothing in the agreement set up in defense which would or could prevent such subsequent transfer, or invalidate the title, or right of such second transferee to maintain a suit in his own name under our statute. — Code of 1886, § 2594.

Second. The alleged oral agreement made contemporaneously with the execution of the bond, not to transfer it except to Shahan, would, if it could have any binding force, vary the writing, in this: The bond binds the maker to pay to Ed. Ashley or order, or, as expressed in the writing, “to the order of Ed. Ashley.” To allow such proof would be to violate a fundamental law of evidence, that written contracts can not be varied by oral agreements made at the same time. 1 Brick. Dig. 969-70, §§ 905 et seq.; 3 Id. 413; Jones v. Trawick, 31 Ala. 253; Lakeside Land Co. v. Dromgoole, 89 Ala. 505; 1 Greenl. Ev. § 275. The subsequent indorsement on the bond was without consideration, and imposes no binding obligation.

Third. If such promise was in fact made, and if it was binding, we are not able to perceive how it can be urged in defense of an action on the note. The plea does not deny that defendant owes the money the bond expresses, and binds him to pay. It sets up no defense to the debt sued for, which could be made available if the suit had been by Ashley, or by Shahan. If by the agreement Ashley imposed on himself a binding obligation not to transfer the bond except to Shahan, there is nothing stated in the plea which shows that Washburn was cut out of any defense, or otherwise injured, by Ashley’s alleged breach of that agreement. Would such agreement, under any circumstances, arm the promisor with any right to defend a suit on the bond? We do not hesitate to affirm that, presented as it is in this case, the plea opposes no bar to a recovery. Possibly, if damage were averred and shown, and the agreement were embodied in the writing, the defendant might defend, or maintain an independent action, dependent on the particular nature of the injury.—McNair v. Cooper, 4 Ala. 660; Standifer v. White, 9 Ala. 527; Patrick v. Petty, 83 Ala. 420. See also Butler v. Gage, 23 Pac. Rep. 462; Perry v. Mer. Ins. Co., 25 Ala. 355.

Eeversed and remanded.