Butler Cotton Oil Co. v. Brooks

THOMAS, J. The suit is to recover the statutory penalty provided for failure to satisfy on the records, after payment and written demand, a mortgage given to defendant’s predecessor in title. Code, § 489S; Drennen Motorcar Co. v. Evans, 192 Ala. 150, 68 South. 303. [1, 2] In determining who are parties to a suit the summons is to be looked to in connection with the complaint, since both are ' served upon the defendant at the same time. Lusk v. Britton, 198 Ala. 245, 73 South. 492. The reporter of decisions will set out the count as last amended. When the summons is considered with the complaint, it is evident who the parties were: J. W. Brooks was the plaintiff, and Butler Cotton Oil Company was the defendant. Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 South. 74, 77 (6). [3, 4] Was the amended complaint by “J. W. Brooks v. Butler Cotton Oil Company, Successor to Butler-Kyser Oil & Fertilizer Company” subject to the -grounds of demurrer challenging the complaint as amended? While the count does not aver that defendant Butler Cotton Oil Company was the mortgagee, transferee, or an assignee of the mortgage in question, it avers that the mortgage was made “payable to Butler-Kyser Oil & Fertilizer Company and now claimed by Butler Oil & Fertilizer Company,' successor to Butler-Kyser Oil & Fertilizer Company,” and that it was requested in writing to enter satisfaction upon the margin of the record of the mortgage and that it had for more than two months thereafter failed so to do. Defendant tested the sufficiency of the complaint as amended by demurrers, grounds of which were: “It is not averred that defendant is an assignee or transferee of Butler-Kyser Oil & Fertilizer Company,” and “a successor is not within the terms of this statute.” The prima facie presumption under the averment is that “Butler Cotton Oil Company” and “Butler-Kyser Oil & Fertilizer Company” were different business .entities. State v. Sloss, 87 Ala. 119, 6 South. 309; Oden-Elliott Lbr. Co. v. Rowe, 201 Ala. 128, 77 South. 552. The statute giving the right of action is highly penal and will be strictly construed. No one falls within its provisions except such as are expressly embraced within its terms, “the mortgagee, or the transferee, or assignee of the mortgagee, or trustee or cestui que trust of the deed of trust.” Wilkerson v. Sorsby, 201 Ala. 182, 77 South. 708; Scott v. Field, 75 Ala. 419; Jarratt v. McCabe, 75 Ala. 325; Grooms v. Hannon, 59 Ala. 510; Martin v. Walker, 196 Ala. 469, 71 South. 667. It has been declared that the penalty provided in the statute will not be extended to classes and persons not embraced in the penal clause “even where there is a manifest omission or oversight on the part of the Legislature.” S. W. B. & L. A. v. Rowe, 125 Ala. 491, 497, 28 South. 484, 486. Cestuis que trustent were not 'embraced in the statute before the act of 1899 (page 26, § 2). S. W. B. & L. A. v. Acker, 138 Ala. 523, 35 South. 468; Jowers v. Brown Bros., 137 Ala. 581, 34 South. 827; Wilkerson v. Sorsby, supra; Case Threshing Mach. Co. v. McGuire, 201 Ala. 203, 77 South. 729; Huckaby v. Jackson, 16 Ala. App. 372, 77 South. 984. It is not averred that “claim *197 ant” was tlie mortgagee, transferee, or assignee of the mortgagee, nor averred to he a trustee or cestui que trust of a deed of trust. Ita lex scripta est. How can we know that the Legislature intended more than it has expressed? Brooks v. State, 88 Ala. 122, 126, 6 South. 902; S. W. B. & L. A. v. Rowe, supra, 125 Ala. 497, 28 South. 484; Hamner, Adm’r, v. Smith, 22 Ala. 433. To this inquiry Mr. Chief Justice Chilton makes classic reply in the latter case: •‘We may well admire judicial acumen, when exerted to ascertain what the law is, in order that, when ascertained, whether it be good or bad, it may receive from the judge an implicit obedience; * * * there is no principle more dangerous in the administration of justice than that which justifies the resort on the part of the judge to slight, flimsy, unsatisfactory shifts to avoid what he conceives to be an odious rule of law. He may meet the justice of the particular case, but the precedent unsettles the law, and tends to make shipwreck of principle. In a word, the judge becomes the arbitrator, rather than the interpreter of the law. Bouv. Diet. Tit. ‘Judge.’ ” The complaint against the Butler Cotton Oil Company, the defendant named in the summons and complaint, was subject to demurrer as indicated. Jordan v. N. C. & St. L. Ry., 131 Ala. 219, 31 South. 566; L. & N. R. R. Co. v. Williams, 113 Ala. 402, 21 South. 938; Kirkland v. Pilcher, 174 Ala. 170, 173, 57 South. 46; Norton v. Allaire-Woodward & Co., 185 Ala. 344, 64 South. 609. [5] Appellant’s' motion to dismiss the appeal on the ground that the transcript was not filed in the office of the clerk within 60 days after the signing of the bill of exceptions, as prescribed by the Act of 1919, p. 84, is waived by the failure to submit the motion at the time of submission on the merits. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. ANDERSON, C. J., and SOMERVILLE and McCLELLAN, JJ., concur. Footnotes [1] <S&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes