Phillips v. Holmes , 165 Ala. 250 ( 1910 )

SAYRE, J.

— This suit, commenced before a justice of the peace by B. F. and A. L. Holmes, as partners in business under the name of Holmes Bros., against W. H. Phillips, G. F. Bucheit, and J. F Light, as joint makers of a promissory note, was, after judgment against all the defendants, removed to the circuit court by writ of certiorari, and to this court by appeal The complaint, after declaring in common form on the note, proceeded: “Plaintiffs claim of the defendants the further and additional sum of $15.00 or so much thereof as may be reasonable attorney’s fees in the premises, and plaintiffs aver that in the said note the defendants stipulated as follows,: ‘If this note is not paid at ma- ■ .turity, to pay the expenses of collection, including attorney’s fees.’ ” The attack upon this complaint for lack of certainty in alleging the amount of recovery sought on account of attorney’s fees cannot be sustained. The note secured a reasonable fee. It was competent for the plaintiffs to limit the amount of recovery to $15.00 by claiming that amount. By the alternative claim of so much thereof as may be a reasonable fee, the plaintiffs accurately stated their recoverable damages on that amount. The claim as formulated was for a reasonable fee not in excess of $15. The ruling here in favor of the complaint was free from error.

In plea A the defendants set up that the plaintiffs were not partners on the day of the filing of the complaint in the circuit court. The suit had been properly brought in the name of B. F. and A. L. Holmes, partners in business under the name of Holmes Bros., and the plea set up a dissolution of the partnership subsequent to the bringing of the suit. In Davis v. Davis, 93 Ala. 173, 9 South. 736, suit ivas brought by three individuals describing themselves as late partners, etc. Pending the trial the plaintiff partners made a general assignment for the benefit of their creditors, and one of them died. These facts were brought to the attention of the court by a plea puis darrein continuance, and otherwise. This court said of the assignment: “In a case like the present one, the assignment accomplishes its purpose by conveying to the assignee the fruits of the suit.” It was also held that the death of one partner did not abate the suit, and that its effect ivas to cast the title and ownership of the chattel or chose in action, the subject of the suit, upon the survivors, who rightly continued the prosecution of the suit in their own names. The legal and beneficial ownership of the subject-matter of suit in the case in hand was. at the time of the filing of the plea, and notwithstanding the truth of the plea, in the identical persons as at the beginning of the. suit. The partnership, not being a natural or artificial person, could not maintain an action. — Moore v. Burns, 60 Ala. 269; Lister v. Vowell, 122 Ala. 264, 25 South. 564. When the suit ivas brought the plaintiffs were partners; when the plea was filed, they were late partners —a difference in mere matter of description. The demurrer ivas ivell sustained.

The cause was removed to the circuit court on the petition of the defendant W. H. Phillips in' which the other defendants did not join. The other defendants now insist that as to them the circuit court never acquired jurisdiction. Until this time it has remained a question of some doubt wdiether the appeal or certiorari bv one of two or more defendants from a judgment of a justice of the peace removes the entire cause to the circuit court, or only the case of the appealing defendant. In Ex parte Bogatsky Brothers & Co., 134 Ala, 384, 32 South. 727, following Craig v. Atwood, 1 Stew. & P. 86, which construed the same statute in an earlier and slightly, though not substantially, different form, this court pretennitted decision of the precise question here presented though deciding that any party had the right of appeal irrespective of the concurrence of others. Such being the case, an appeal by one necessarily operates as a severance, and removes those difficulties which have seemed to require that on appeal to this court the entire cause shall be removed and a severance had here if desired. We are inclined, therefore, to the opinion that the appeal of one defendant from the judgment of a justice of the peace to the circuit court removes the cause as to the one party only. It is, however, hardly necessary to decide the point in this case for the reason that all the defendants participated in the ' defense in the circuit court. All the pleadings by way of defense in that court were entitled as of a. cause in which there was more than one defendant. This alone would not be considered as at all conclusive, but the pleadings themselves, filed by .duly authorized attorney as we must presume, were filed on behalf of the “defendants,” meaning, as we think, all the defendants to the original cause. Having defended on the'merits the defendants cannot now be heard to say that they were not properly in court. Having appeared in court and defended without objection to the right of the court to try the case it is imma.terial how they got there.

The appellant Phillips insists, by separate assigm ment of error, that the circuit court had not jurisdiction to render a monetary judgment against him for the reason that the certiorari removing the cause was a common-law certiorari, upon which the court had power only to render a judgment of affirmance or one quashing the judgment. Upon removal to the circuit court by the common-law certiorari the judgment is that the proceedings below be either quashed or affirmed in whole or in part. — Independent Pub. Co. v. American Press Ass’n, 102 Ala. 475, 15 South. 947. The insistence of the appellant is grounded upon the following statement of law and fact: Section 4647 of the Code provides that summons issued by a justice. of the peace must he executed three days before the return day thereof, by personal service of a copy of the summons and indorsements thereon on the defendant; the return day of the summons ivas July 18, 1908; the constable’s return showed service on defendant Phillips on June 17th; the transcript of the record sent to the circuit court showed that on June 17th defendant appeared and confessed indebtedness to the plaintiff and acknowledged service of the summons and complaint; the judgment, rendered on June 18th, was a judgment by default; in the petititon for certiorari it is alleged that the judgment by default was unjust and unwarranted in that petitioner had only one day’s notice of the day set for trial. On these facts and the statute quoted, appellant, conceding that his appearance and acknowledgement of service obviated all objection to the manner of service, contends that he failed to have three days’ notice of the suit before the return day thereof, and that this was error to be reviewed by the common-law writ of certiorari. The petition for the writ does not show that appellant had in mind any distinct theory as to the remedy he desired, whether common law or statutory writ. That petition does state what was supposed to be error in the proceedings, but at the same time it sets forth an excuse for not having taken appeal within five days, and it specifically prays that the proceedings below he quashed; the prayer iva,.* lor a writ in order that justice might be done. In the circuit court it clearly appears that appellant treated the removal of the cause as having' been secured by virtue and for the purpose of the relief afforded by statutory certiorari, and nothing appears to the contrary. The appellant filed pleas going to the merits of the cause and entered upon the trial de novo. No such proceedings are contemplated on the removal of a cause by the common-law writ, as has already appeared. In Independent Pub. Co. v. American Press Ass’n, supra, it was said: “Upon a sufficient showing, with reference to any error of record apparent, the writ may issue, and the case be brought up. It is tried under the statute de novo. But this section of the Code (3405 of the Code of 1886) can have no reference to the proceedings under the common-law writ of certiorari, which is granted only in proper cases for error of record apparent, upon which the only proper judgment is to affirm or quash the proceedings. — Page 492 of 102 Ala,, page 953 of 15 South. And this on page 493 (953), of the same report: “If he resorted to an appeal, he made himself a party, brought himself into court, and after being compelled to secure the debt by his appeal bond in order to obtain the appeal, must then submit to a trial de novo.” Having tried his case in the circuit court on one theory, appellant is estopped to try it in this court upou another.

So, also, the appellants, other than Phillips, bavin; accepted whatever advantage there was to be had from a trial de novo in the circuit court, and having participated in the trial of the case there as parties to the record, cannot now be heard to say that they did not join in the appeal so as to escape the assessment of damages for delay. That assessment, as for anything appearing to the contrary, was free from error.

' Affirmed.

Anderson. McClellan, and Mayfield, JJ., concur.