Orr v. Sparkman , 120 Ala. 9 ( 1897 )

HARALSON, J.

1. Motion is here made to strike all that part of the transcript on pages 3 to 17, inclusive, beginning with “summons and complaint” oh page 3, and extending to “Notice of appeal”' on page 17, on the grounds, that what is there transcribed is surplusage, and has no place in the record of the cause, and that the same is unnecessary to the proper determination of the cause, is useless, cumbersome to the transcript, and adds unnecessarily to the expense of the same.

The papers therein transcribed had reference to a garnishment proceeding in the main case, in nowise involved in the appeal to the circuit court, and included jileas and replications before .the justice set out in extenso. The amount in suit was under $20, in which case the statute provides the cause shall be tried by the court without the intervention of a jury, but when it exceeds that sum, an issue is required to be made up, under the direction of the court, and the cause tried by a jury.—Code of 1896, § 490. Section 488 provides, that cases of appeal on certiorari from judgments of justices of the peace, “must be tried de novo and according to equity and justice without .regard to any defect in the summons, or qther process, or proceedings before the justice.,”

There was no necessity for the trial of this cause, for the setting out of any of said proceedings excepted to as surplusage and cumbersome, down to the appeal bond, and the motion to strike, from the point indicated in said motion, down to the appeal bond on page 16, will be granted, and no costs will be allowed for that part of the transcript.

2. Section 482 of the Code of 1896 prescribes that unless provided for, no cause can be carried from the justice’s to the circuit or other -court of the like jurisdiction, “unless the party applying for such appeal or certiorari first executes bond, with sufficient sureties, payable to the adverse party, with condition to pay such judgment as may be rendered against him by the court to which the .cause is sought to be removed.” The appeal bond in this case to the circuit court was conditioned to ‘ ‘pay and satisfy such judgment as the Supreme Court shall render in the case.” The defendant submitted three motions to the court below : 1st, to dismiss the appeal because, in substance, said appeal bond was not conditioned to pay such judgment as may be rendered against him by the circuit court of Morgan county, to which the cause was sought to be removed, but that the same was conditioned “to pay and satisfy such judgment as the Supreme Court shall render in this case;” 2d, to strike the cause from the docket on the same grounds ; and, these two motions being overruled by the court, 3d, that the plaintiff be required to give a new appeal bond in the case, which motion the court also overruled.

The bond executed was defective, not conditioned as the statute prescribes, and a new and sufficient bond should have been required of the appellant, or his appeal should have been dismissed. — Code of 1896, §§ 482, 487.

3. The bill of exceptions purports to set out all the evidence. There was no proof submitted as to the value of an attorney’s fee for prosecuting the note sued on to judgment, and yet the court in its findings allowed the plaintiff $5 for an attorney’s fee, and rendered judgment accordingly. In this there was also error.

4. It is not questioned, and the court so found, that there was usury in the note sued on as between the •maker and pajee ; but the evidence shows without any conflict, that the plaintiff knew nothing about that fact, nor of the other fact set up as a defense, that the defendant signed the note without reading it, and in ignorance of its containing a waiver of exemptions and providing for an attorney’s fee for collecting it, and that he bought the note, which was commercial paper, for a valuable consideration, before its maturity without knowledge of any defect or defense whatever, the maker had against it. The court ascertained these facts in its finding.

5. It satisfactorily appears, that the plaintiff bought this note and others, at the same time, from its holder, the payee, at a price which would have been usurious, if the transaction had originated in the borrowing of money; but it also satisfactorily appears, that the contract by which he obtained the note was not one “for the payment'of interest upon the loan or forbearance of goods, money, things in action, * * * at a higher rate than” eight dollars upon one hundred dollars for one year.— Code of 1896, § § 2626, 2680; Capital City Ins. Co. v. Quinn, 73 Ala. 558; Brown v. The Bank, 103 Ala. 123; Hart v. Adler, 109 Ala. 467; Scott v. Taut, 115 Ala. 529.

For the errors indicated, the judgment below is reversed and the cause remanded.

Reversed and remanded.