Simington v. Kent's Ex'r.

8 Ala. 691

• Court: Supreme Court of Alabama
• Decided: June 15, 1845
• Status: Published

Opinion

COLLIER, C. J.

The notice, it is true,'does pot entitle the cause as being brought for the use of the beneficial plaintiff, yet we think the designation of the parties was sufficiently precise to have enabled the attorney to understand in what case it was proposed to use the paper as, evidence.

Our statute in totidem verbis declares, that in all cases pending before any of the Courts of record, written notice to the attorney of record, shall be as valid' and legal to all intents and purposes, as if served on the party in person. [Clay’s Dig. 337, § 137.] In Jefford’s Adm’r. v. Ringgold & Co. 6 Ala. Rep. 549, a notice was served on the defendant’s attorney, in Lowndes county, on Friday preceding the term of the Court, when the cause was tried, to produce a paper at the trial. It was proved that the paper was seen in the possession of the defendant, in Charleston, South Carolina, and that he had not lately been in this State. We considered the notice sufficient, and remarked, that “If the party to whom the notice is given, has had prima fa-cie sufficient notice to produce the paper, and is still unable to do so, if he is unwilling that its contents should be proved by parol, he may apply for a continuance; but an objection at the trial, that the notice was too short to enable him to comply with it, would be listened to with little favor.” See also, Jackson v. Hughes, 6 Ala, Rep. 257. These cases, if other authority than the statute itself were necessary, very conclusively settle that a notice to the attorney of a party, pending a cause, is notice to the party himself.

The fact that the attorney in the present case was retained by the real, instead of the nominal plaintiff, we think altogether unimportant. Whether he represent the one party or the other, either himself or his client are presumed to be in possession of the papers which may be material on the trial of the cause. If he has them not then, he should advise his client of the requisition, but whether he pursues this course or not, if the papers are not produced after reasonable notice, then parol evidence will be received. Although the paper demanded may be such as belongs to the nominal plaintiff] yet a notice to the beneficial plaintiff] or his attorney, is regular. This is the necessary result of what has been said — the judgment is consequently affirmed.