Opinion
8 Div. 172.
May 1, 1919.
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
Bouldin Wimberly, of Scottsboro, for appellant.
Milo Moody, of Scottsboro, for appellee.
Upon consideration of the bill of exceptions in connection with the record proper, it does not appear that the court permitted the verdict, or the judgment founded upon it, to be impeached, changed, or modified, by parol evidence. Appellee's motion was to direct the distribution of a fund which had been paid into court on an uncontroverted plea of tender at the previous term. This plea answered so much of the complaint as claimed rent for the year 1916. It did not purport to answer that part of the complaint which sought to recover as for advances made by plaintiff's intestate during the years 1913, 1914, and 1915. This part of the complaint was answered by separate pleas. No issue was formed on the plea of tender, and there was no error in treating it as confessed. The clerk of the court, on instructions from the defendant, had partially distributed the fund which came in with the plea of tender, and the purpose of plaintiff's motion was to correct that distribution and to order another in keeping with their rights. There was no authority for the distribution made, and it might be corrected at a subsequent term of the court. There was no impropriety in showing by the clerk how and why he had distributed the fund, and the evidence as to what the jury considered, if not superfluous in view of the record, did not tend to impeach the verdict or judgment; rather, it tended to show a state of facts in accord with the facts shown by the undisputed record. Birmingham Ry. Co. v. Mason, 144 Ala. 387, 39 So. 590, 6 Ann. Cas. 929. It was, at worst, harmless.
Affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.