Opinion
1 Div. 96.
April 4, 1933. Rehearing Denied June 6, 1933.
Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.
Action on promissory note by the Monroe County Bank against Arthur E. Qualls, as administrator of the estate of A. J. Qualls, deceased. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
The note upon which the suit is based was dated February 23, 1926, in the sum of $605, payable October 1, 1926, to the Monroe County Bank, and signed by Tom Fry, W. M. Fry, Alex Fry, and A. J. Qualls, all except the first signature being by mark.
The bill of exceptions shows the following: "Here plaintiff's attorney stated to the court, at the same time handing the instrument to his Honor: 'Now we offer in evidence merely as corroborating the question of the execution of the notes the mortgage of these same Frys and A. J. Qualls, bearing date of February 23, 1926, and recorded in Mortgage Book 117, page 484, Probate Office, Monroe County, Alabama, and given to secure the payment" of this note. Said mortgage is as follows' " — the mortgage being thereupon set out. It recites: "This mortgage, executed by Tom Wm. Alex Fry party of the first part," etc. It is signed by the same parties (Tom, Wm., and Alex Fry and A. J. Qualls) and in the same manner as the note, and appears to have been acknowledged by "Tom, Wm. Alex Fry."
Defendant objected to the introduction of the mortgage "on the grounds that it is illegal, irrelevant, incompetent and immaterial; that it is a separate and distinct instrument from the one sued on, and refers to a transaction in which the estate of the deceased is interested." The court stated: "But this is a self-proving instrument as I understand it, and it is given for $605.00 on the date of the note, and signed by the same parties that signed the note."
Counsel for the defendant stated to the court: "It would have no probative force one way or the other." The court stated: "You can argue that to the jury. I overrule the objection." Defendant reserved an exception to this ruling. The mortgage was thereupon introduced in evidence, and defendant moved to exclude it on the same grounds interposed to its introduction. This motion was overruled.
J. D. Ratcliffe, of Monroeville, for appellant.
The mortgage offered was not self-proving, but proof of its execution was necessary to render it admissible against objection. Lewis v. Glass (Ala. Sup.) 39 So. 771. Mere signature of Qualls to said mortgage did not make it his mortgage. Davidson v. Ala. I. S. Co., 109 Ala. 383, 19 So. 390; Sheldon v. Carter, 90 Ala. 380, 8 So. 63. The effect of the introduction of the mortgage and statements with reference to it was to cause the jury to conclude that, if Qualls executed the mortgage, he also executed the note. Rule 45 cannot, therefore, apply. L. N. R. Co. v. Rush, 22 Ala. App. 195, 114 So. 21.
Barnett, Bugg, Lee Jones, of Monroeville, for appellee.
While the mortgage was erroneously introduced, no injury resulted to defendant. Defendant's objection did not take the point that it was not self-proving, and this fact was not discovered by plaintiff until after its introduction. It was never turned over to the jury, and no reference in argument was made to it. Supreme Court Rule 45, 4 Code 1923, p. 895.
Suit by appellee against appellant on a promissory note purporting to have been signed, etc., by A. J. Qualls, appellant's intestate, etc.
The execution of the note sued on was denied by sworn plea. Code 1923, § 9471. This placed the burden upon appellee to prove the execution of the said instrument. Code 1923, § 7663.
The evidence adduced upon this issue, i. e., the execution, etc., vel non, by appellant's intestate, of the note, without objection, so far as the bill of exceptions discloses, made it a proper one to be submitted to the jury for decision. McMillan v. Aiken et al., 205 Ala. 35, 88 So. 135.
In this situation appellee was allowed, over appellant's timely objection, to introduce in evidence "merely as corroborating the question of the execution of the note, the mortgage of these same Frys (the parties with whom, jointly, appellant's intestate A. J. Qualls, was alleged, and apparently shown, to have executed the note sued on, we interpolate) and A. J. Qualls, bearing date of Feb. 23, 1926 (the same date borne by the note sued on, we again interpolate) * * * and given to secure the payment of this note (referring to the note sued on, we once more interpolate)."
This mortgage, so introduced in evidence, was in no wise shown to have been executed by appellant's intestate, though his name, by mark, appeared at its foot, etc. Due exception was reserved to the action of the court indicated. And it seems to be conceded that it was erroneous.
The trial court in overruling appellant's motion to set aside the verdict of the jury, etc., recites in its judgment that the same was "refused and overruled under the influence of Supreme Court Rule 45"; thereby, as we take it, indicating that it, as well as counsel in the cause, concedes that its action with reference to the above-mentioned mortgage, etc., was erroneous.
But we do not agree that Supreme Court Rule 45 can save a reversal of the judgment appealed from. We do not propose to write a thesis on this salutary rule, but merely content ourselves with the observation that it was not, in our opinion, promulgated with a view to — at one stroke of the pen, so to speak — transforming courts of law into courts of chancery, if indeed, that would save this judgment from reversal.
We may only review rulings made the basis of exceptions, and assignments of error duly and properly argued here. Upon another trial, not only will the ruling above mentioned not occur, but the "corrections" indicated by Code 1923, § 7721, will doubtless be made by the learned, and, usually, very careful trial judge.
For the error stated, the judgment must be, and is, reversed, and the cause remanded.
Reversed and remanded.