Kimball v. Penney

COLEMAN, J. The suit began before a justice of the peace upon a promissory note, in which court the plaintiff recovered judgment. The defendant removed the cause to the city court of Decatur, by statutory certiorari issued by the judge of probate. Judgment nil dicit was rendered for plaintiff in the city court. By act of the legislature the city court of Decatur was abolished, and the causes and proceedings in that court were transferred to the circuit court of Morgan county. In the circuit court a motion was made by the defendant for a new trial. This motion was heard and adjudicated by [248] O. Kyle, as special judge. The judgment entry is as •follows : “The.judge of this court being related to the plaintiff, 0. Kyle, an attorney at law, is selected by the parties and agreed upon by them to try this motion.” The motion for a new trial was granted and the cause placed upon the docket for trial upon its merits. The ■following judgment entry was made: “Come the parties by their attoimeys, and the presiding judge being incompetent to try this case, and the parties having failed to agree upon an attorney to try the same, the clerk of the court appointed W. W. Callahan, an attor•ney learned in the law, special judge,” etc: No objection seems to have been raised to the person selected or •method of appointment at the beginning or during the trial; but after judgment it is insisted, that the order should-have set out wherein the judge of the circuit court was-incompetent. This objection is not sustained by the record, and is without merit. The cause was heard and tried by the court, without the intervention of a jury. The judgment entry is as follows : “The 'right of -trial by jury having been waived, the court proceeds to hear and determine the same without the intervention of a jury, and the defendant’s motion and de'mand for trial by jury is by t-hemourt overruled.” The court rendered judgment for the plaintiff. The judgment bears date October 15, .1895. On November 19, 1895, the following order was made: ‘ ‘For good reasons shown, the time for signing bill of exceptions is extended five days from this date.” On November 25, the time was again extended for two days. The bill of exceptions bears date November 26, 1895. It is clear that the last order of the special judge made November 25, 1895,'extending the time two days, was without authority. The last valid order of the court dated November 19, 1895, extended the time five days from this date. The next order, that of November 25, was made after the expiration of five days, and consequently was null and void. The bill of exceptions not having been signed in .legal time cannot be regarded by this court. The act of February 4,1893 (Acts of 1892-93, p. 263), provides that in all actions begun before a justice’s court and brought into the city court by appeal or certiorari, the demand for a jury shall be made by the appellant at the time of filing hia appeal or certiorari bond, [249] by endorsing the demand therefor on said bond, which indorsement must be attested by the officer approving the same at the time of filing of said bond, * * * 'and a. failure to demand a jury in such manner shall be deemed and held a waiver of the right of trial by jury. The record does not show that tllé demand for a jury trial was made as herein provided. We find no error in the ruling of the court in holding that a jury trial had been waived. The suit was upon a promissory note. The defendant filed several special pleas, setting up failure of consideration, want of consideration, payment, and fraud in procuring the execution of the note. To these the plaintiff replied specially, that he purchased the note from the payee McDaniel; that before purchasing the same, “he went to the defendant and asked her about the note, whether it was all right, and whether she would 'pay it. She then and there stated to the plaintiff, that the note was all right, that she owed it and would pay it, and plaintiff relying on such representations and statements of the defendant bought said note from McDaniel, paying him a valuable consideration therefor. That if the statements contained in said special pleas were true, the plaintiff was ignorant of them at the time he bought said note, and that he was induced by said defendant’s statements herein set out to buy said note.” The court did not err in overruling the demurrer to this replication, nor in holding that the rejoinder to -the same was insufficient. The defendant was entitled to and we must presume did receive, every available defense in the joinder of issue upon the replication of the plaintiff. There is no' error in the record available to appellant. Affirmed.