Stephens v. International Harvester Co.

80 So. 686, 16 Ala. App. 612, 1918 Ala. App. LEXIS 281

• Court: Alabama Court of Appeals
• Decided: November 12, 1918
• Docket: 7 Div. 553.
• Status: Published

Opinions

We think it clearly appears from the recitals of the final judgment of the court that the nonsuit was superinduced by the adverse rulings of the court on the demurrers to both the original and amended complaint, and that the record presents the question of their sufficiency for review. Berlin Machine Co. v. Ewart Lumber Co., 184 Ala. 272, 63 So. 567; Laster v. Blackwell, 128 Ala. 143, 30 So. 665.

None of these counts set out the instrument described therein in hæc verba. The first four counts affirmatively aver that the instrument is a chattel mortgage, while the others aver that in the instrument the defendant retained a vendor's lien on the property, and we are not able to say that these averments are rendered mere conclusions by the additional facts set out in the amendment to the several counts, or that it appears therefrom that the instrument described in the first four counts is an ordinary conditional sale, rather than a mortgage. Dilworth v. Holmes Furn. Vehicle Co., 183 Ala. 608,62 So. 812; Tompkins v. Monticello Cotton Oil Co. (C. C.) 137 Fed. 625.

Each and all of the counts, however, are subject to the objection pointed out in the seventeenth and eighteenth grounds of demurrer, rendering the ruling on the demurrers free from error.

Affirmed.

On Rehearing. In Foster v. Thompson, 10 Ala. App. 365, 65 So. 414, the question was whether or not the judgment was void, and for this reason subject to collateral attack, because it appeared on the face of the record that the judgment was rendered on a debt not due, and it was there said:

"The designation of the year 1907 as it appears in the complaint might well be considered as a self-correcting clerical error, and that the year intended to be designated was 1906, the same year in which the account was made. But, however that may be, the fact that the obligation sued upon was not due would make the judgment erroneous or irregular, but not void."

The rule applicable to cases of that character is that the invalidity must affirmatively appear on the face of the record, and all doubt will be resolved in favor of the validity of the judgment.

In Sheffield Co. v. Harris, 183 Ala. 357, 61 So. 88, the defect in the complaint held to be self-correcting does not seem to have been specifically pointed out by the demurrers, which were held to be properly overruled.

In this case, the demurrers point out a specific demurrable defect, and the court has sustained the demurrer. Should this court on appeal hold that the judgment of the court is erroneous, because perchance the defect appears to be a clerical error? We think not. The grounds of demurrer were well taken, and the result is that the judgment on them is free from error.

Application overruled.