Hutchinson v. Palmer , 147 Ala. 517 ( 1906 )

SIMPSON, J.

This'was a bill in the chancery court by appellant against the appellees, seeking to enjoin the collection of certain judgments in the city' court of Birmingham against appellant; said judgments having been rendered on notes of appellant, in which were embodied powers of attorney authorizing the confession of judgment on the same if -not paid at maturity. The hill alleges that said notes were given for a certain insurance policy then applied for, which policy, when delivered, was of a different character from the one which Ire had been led to expect by the representation of said defendant, J. T. Palmer, who was acting as agent of the State Mutual Life & Annuity Association of Rome,- Ga. Several amendments were filed to the bill, and the chancery court finally sustained a demurrer to the bill as amended, and also a motion to< dismiss the hill for want of equity. Said life insurance association is not made a party to the bill.

The appellant moves this court to strike and expunge from the record the answer of the defendant to the original bill, before amendmnet, and which was embodied in the same paper with the demurrer; also the answer to- the amended bill, with the exhibits thereto-. The transcript, which is required to be sent to the appellate court on appeal, consists of the entire record of the proceedings up to the time of appeal. — 2 Ency. PL & Pr. pp. 259, 260. Our rules of practice provide that certain things shall not be copied into the record, but as to other parts of the proceedings, including those here sought to be expunged, our rules permit their omission only on agreement between the parties, or their attorneys. — Rules of Practice 29, 30, Supreme Court; Code 1896, pp. 1191, 1192. The motion is overruled.

Admitting the principle invoked by the appellant on the subject of the right of a defendant to have notice of proceedings against him before a valid judgment can be rendered against him, yet this is a right which can be waived by him, and if he executes a note, in which he embodies a. power of attorney authorizing an appearance and confession of judgment on failure to pay the note at maturity, this is a waiver of notice, and a judgment rendered, in accordance with the authority therein given is as valid and binding as if rendered on regular service of process.- — 30 Am. & Eng. Ency. Law (2d Ed.) 110, 111; Teel v. Yost, (N. Y.) 28 N. E. 353, 13 L. R.A. 796; 11 Ency. Pl. & Pr. 985, 987, 989; First Nat. Bank of Athens v. Garland, (Mich.) 67 N. W. 559, 33 L. R. A. 83, 63 Am. St. Rep. 597; Van Norman v. Gordon, (Mass.) 53 N. E. 267, 44 L. R. A. 840, 70 Am. St. Rep. 304; Galler v. Denson, Minor, 19;; Hodges & Puckett v. Ashurst, 2 Ala. 301.

It is claimed, however, in the bill of complainant, that the policy which was delivered did not contain any stipulations for certain concessions which he was to- have. In the first place, it is observed that, the only7 allegation in regard to the kind of policy7 which complainant was to receive is that the “policy for and in consideration of which only said promissory7 notes were executed and de-' livered was,’’ etc. The bill does not allege by whom or how the representations were made that he was to receive such a policy7, hut it does state that he made a written application for said policy7 to said insurance association “upon the terms and conditions that are averred and set out in paragraph 3 of the hill of- complaint,” in which it was stated: “I have read a sample blank form of the policy applied for, to be issued on the above-named plan, and I hereby accept the conditions of the same. * * í:' I agree that no statement, promises, or information made or given by the person soliciting this application shall be binding on the association, unless such statements, promises, or information be reduced to writing and presented to the officers of the association at the home office in this application. The application and the policy hereby7 applied for taken together shall constitute the entire contract between the parties, hereto.” It is evident that complainant had the original written application, or a. copy7 of if, from the extensive quotation which lie makes from it, yet he does not set it out, or make it au exhibit to his bill, but, on the contrary7, moves to expunge that part of the record which contains it.

The complainant still has in his possession the policy7 issued to him, has never offered to deliver it up, does not make the life assurance association (to which he made the application and which issued the policy in question) a party to this bill, nor doe* he ask for a rescission of the contract or cancellation of the policy. The application was made January 30, 1903, and the policy presumably delivered soon after, and complainant alleges that it was two months thereafter when he. discoveied that it, was not the kind of policy he had contracted for, and that, he did not return it, but merely7 kept it iu his possession without receiving and accepting it as the policy he had applied for, and, even in September, 1903, when the attorneys demanded payment of his said note* he merely informed them of his dissatisfaction with the policy and refused to pay tlie notes, and has since had no further correspondence, with them or any one else in regard to the matter. Without dwelling upon other matters which are patent upon the statement of the facts, even if the complainant had a cause of action otherwise, he could not hold the policy and refuse to pay the notes which were given for the premiums. If the policy received was different from that which he had contracted for, it was his duty to ascertain that fact within a reasonable time and return it for cancellation. — 16 Am. & Eng. Ency. Law, 953; Bostwick v. Mutual Life Ins. Co., 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, 67 L. R. A. 705; Allen v. Smith, (Ala.) 39 South. 615.

The decree of the court is affirmed.

Tyson, Dowdell, and Anderson, JJ., concur.