Preslar v. Stallworth

Supreme Court of Alabama

Preslar v. Stallworth

37 Ala. 402

CourtSupreme Court of Alabama

DecidedJanuary 15, 1861

StatusPublished

Cited by16 cases

This text of 37 Ala. 402 (Preslar v. Stallworth) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Preslar v. Stallworth, 37 Ala. 402 (Ala. 1861).

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Opinion

R. W. WALKER, J.

1. The record of the judgment in favor of Halsey, Utter & Co. against the plaintiff, was clearly admissible, to prove that such a judgment was rendered, and by way of inducement to the evidence that the debt on which it w-as- founded, and for which' the defendant was bound as co-surety with the plaintiff,' had been paid' by the latter. — Harrell v. Whitman, 20 Ala. 519 ; Troy v. Smith, 33 Ala. 471 ; Firemen’’s Ins. Co. v. McMillan, 29 Ala. 147.

2. The charge which the court gave the jury, is in strict accordance with the opinion pronounced wdien the case was-had before them 5. and the principles then settled.cannot-, now be re-examined. — Stallworth v. Preslar, 34 Ala. 505, and authorities cited.

3. As between sureties, the statute of limitations does not begin to run, until there is a right of actionand that does not accrue, until one of them.has paid the whole, or' more than his share, of- the common .debt. Hence, the discharge of one of the joint debtors, (by whatever cause,) from his direct liability to the creditor, does not relieve him, in law, from his obligation, of contribution to such of his co-sureties as have borne more than their just proportion of. the debt. — Stallworth v. Preslar, supra; 1 Parsons on Contr. 36 ; Peaslee v. Breed, 10 N. H. 489. The first and second-charges asked by the defendant, were, therefore, properly-refused.

4. Nor did the court err in refusing to give the last'charger’ asked by defendant. At law, it is well settled, that the payment of a judgment by, or its assignment to one of several defendants, extinguishes the judgment, although the defendant by whom it is paid, or to whom it is assigned, is a mere surety. A court of law cannot substitute such surety in the place of the plaintiff, and allow him to take out execution upon the judgment. The judgment is regarded as extinguished against all . — Bank of Salina v. Abbott, 3 Denio, 189 ; Hogan v. Reynolds, 21 Ala. 56 ; Lyon v. Bolling, 9 Ala. 466.

[406]*4065. If it were conceded, that the witnesses, Halsey, King-, and Robertson, were incompetent by reason of interest, or under section 2290 of the Code, the objection could not-now avail the defendant. .The objection in the court below was a general objection to the entire deposition of each witness, — no specific cause being stated. Such an objection, if .available.for any purpose, does not raise the question of the competency of the witness to testify in the cause (Goldsmith v. Picard, 27 Ala. 142, 152 ; Phillips v. Kelly, 29 Ala. 632 ; Cunningham v. Cochran, 18 Ala. 480) ; and that question cannot be raised, for the first time, in the appellate court. As to whether tlie assignor of a judgment is tlie transferror of a contract within the meaning of section 2290 of the Code, see Smith v. Harrison, 33 Ala. 209.

.6, We-think, however, that the court erred in permitting the parol evidence of .the existence and contents of the note to go to the jury. The only proof of the loss of the note consists of the evidence of Cooper and DeLoach. The former was the attorney who attended to the suit in favor of Halsey, Utter & Co. against the plaintiff and Watts. He proves, that the original note was had and used on the trial of that case, and was filed with the papers. DeLoach is the clerk of the court in which the trial was had ; and he simply states, that the note is not now on file in his office with the other papers in the case,, and that he does not know what has become of it. Tlie general statement bj an officer into whose custody a particular.paper is traced, that the document is not now in bis office with the other' ‘.papers of the .case, and that he does not know what has become of it, is .too indefinite to satisfy the rule in relation to-the admission of secondary evidence. There should have been some more direct evidence of a search of the file for the note. — Millard v. Hall, 24 Ala. 209 ; Johnson v. Powell, 30 Ala. 113 ; Starkie’s Ev. (Sharswood’s ed.) 531-8 ; 3 Phill. Ev. (C. & H’s notes, 2 ed.) 1223-1231 1 Greenl. Ev. § 558.

Judgment reversed, and cause remanded.

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R. W. WALKER, J.

1. The record of the judgment in favor of Halsey, Utter & Co. against the plaintiff, was clearly admissible, to prove that such a judgment was rendered, and by way of inducement to the evidence that the debt on which it w-as- founded, and for which' the defendant was bound as co-surety with the plaintiff,' had been paid' by the latter. — Harrell v. Whitman, 20 Ala. 519 ; Troy v. Smith, 33 Ala. 471 ; Firemen’’s Ins. Co. v. McMillan, 29 Ala. 147.

2. The charge which the court gave the jury, is in strict accordance with the opinion pronounced wdien the case was-had before them 5. and the principles then settled.cannot-, now be re-examined. — Stallworth v. Preslar, 34 Ala. 505, and authorities cited.

3. As between sureties, the statute of limitations does not begin to run, until there is a right of actionand that does not accrue, until one of them.has paid the whole, or' more than his share, of- the common .debt. Hence, the discharge of one of the joint debtors, (by whatever cause,) from his direct liability to the creditor, does not relieve him, in law, from his obligation, of contribution to such of his co-sureties as have borne more than their just proportion of. the debt. — Stallworth v. Preslar, supra; 1 Parsons on Contr. 36 ; Peaslee v. Breed, 10 N. H. 489. The first and second-charges asked by the defendant, were, therefore, properly-refused.

4. Nor did the court err in refusing to give the last'charger’ asked by defendant. At law, it is well settled, that the payment of a judgment by, or its assignment to one of several defendants, extinguishes the judgment, although the defendant by whom it is paid, or to whom it is assigned, is a mere surety. A court of law cannot substitute such surety in the place of the plaintiff, and allow him to take out execution upon the judgment. The judgment is regarded as extinguished against all . — Bank of Salina v. Abbott, 3 Denio, 189 ; Hogan v. Reynolds, 21 Ala. 56 ; Lyon v. Bolling, 9 Ala. 466.

[406]*4065. If it were conceded, that the witnesses, Halsey, King-, and Robertson, were incompetent by reason of interest, or under section 2290 of the Code, the objection could not-now avail the defendant. .The objection in the court below was a general objection to the entire deposition of each witness, — no specific cause being stated. Such an objection, if .available.for any purpose, does not raise the question of the competency of the witness to testify in the cause (Goldsmith v. Picard, 27 Ala. 142, 152 ; Phillips v. Kelly, 29 Ala. 632 ; Cunningham v. Cochran, 18 Ala. 480) ; and that question cannot be raised, for the first time, in the appellate court. As to whether tlie assignor of a judgment is tlie transferror of a contract within the meaning of section 2290 of the Code, see Smith v. Harrison, 33 Ala. 209.

.6, We-think, however, that the court erred in permitting the parol evidence of .the existence and contents of the note to go to the jury. The only proof of the loss of the note consists of the evidence of Cooper and DeLoach. The former was the attorney who attended to the suit in favor of Halsey, Utter & Co. against the plaintiff and Watts. He proves, that the original note was had and used on the trial of that case, and was filed with the papers. DeLoach is the clerk of the court in which the trial was had ; and he simply states, that the note is not now on file in his office with the other papers in the case,, and that he does not know what has become of it. Tlie general statement bj an officer into whose custody a particular.paper is traced, that the document is not now in bis office with the other' ‘.papers of the .case, and that he does not know what has become of it, is .too indefinite to satisfy the rule in relation to-the admission of secondary evidence. There should have been some more direct evidence of a search of the file for the note. — Millard v. Hall, 24 Ala. 209 ; Johnson v. Powell, 30 Ala. 113 ; Starkie’s Ev. (Sharswood’s ed.) 531-8 ; 3 Phill. Ev. (C. & H’s notes, 2 ed.) 1223-1231 1 Greenl. Ev. § 558.

Judgment reversed, and cause remanded.

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37 Ala. 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/preslar-v-stallworth-ala-1861.

Opinion

R. W. WALKER, J.

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