Alabama National Bank v. Hunt

HARALSON, J. In this cause one of the defendants filed a number of special' pleas, to which demurrers were interposed. Upon these demurrers what purports to be the judgment entry contains the following recital: “Thereupon plaintiff’s demurrers numbered 1, 2, 3, 4, 5, 6, 7, 8 and 9 to the 3rd and 4th pleas are overruled and disallowed. All demurrers to 5th, 7th, 8th, 9th and 10th pleas are overruled and disallowed.” It has been repeatedly held by this court that unless a party secures a ruling on a demurrer, it will be presumed on appeal that the demurrer was withdrawn or abandoned.- — Ala. Mid. Railway Co. v. McDonald, 112 Ala. 216; American Mortgage Co. v. Inzer, 98 Ala. 608; Elyton Land Co. v. Morgan, 88 Ala. 434. If the judgment entry is insufficient to show a ruling on the demurrers they must now be treated as Avaived. In Jasper Mercantile Co. v. O’Rear, 112 Ala. 247, the following language Aras used: “We may remark, however, that the mere copying into AA-hat purports or Avas intended to he [519] a judgment entry, of memoranda made on tlie docket by the judge, such as, ‘plaintiff’s demurrer to 4th, 5th and 6th pleas overruled and demurrer to other pleas sustained,’ is not sufficient as a judgment upon the demurrers. There should in all cases be a formal -submission on demurrers to -specified pleadings, a recital of consideration thereof by the court and a formal adjudication, such as, ‘It is therefore .considered and adjudged by the court that the demurrers be and they are hereby overruled,’ or sustaned, -as the case may be.” The recital here seems to be nothing more or less than a copy of the memoranda made by the judge upon the docket, with the exception of the -word “thereupon,” which of itself can have no effect. There was no formal entry of submission on demurrers to specified pleadings. The judgment entry contains no recital of consideration by the court, nor any formal adjudication. A judgment to be valid must be complete in itself; it must appear to be the act, the adjudication -of the court, -and not a mere memoranda of its acts. — Bell v. Otts, 101 Ala. 186; McDonald v. Ala. M. R. R. Co., 123 Ala. 227. It follows that what purports to be a judgment upon the demurrers is entirely insufficient and they must be treated as waived. The plaintiff also filed replications to defendant’s pleas and the defendant demurred thereto, which demurrers purport to be sustained. But the judgment entry shows the same looseness and informality as it does with reference to the demurrers to the pleas. In this aspect of the cause, it should properly have been tried upon the pleas -and the replications thereto, in which event appellant would have had the benefit of the material question raised by its demurrers, and the cause tried on joinder of issue on the replications, were it not ■for the fact that the judgment entry recites that issue was joined upon certain specified pleas, leaving out the replications altogether. The cause as thus presented contains but a single question, since the parties have so made the issue, and that question is, whether or not the letter of defendant, Richardson, to appellant was ■sufficient under -secton 3S84 of the Code to -discharge him [520] from liability as a surety upon the note in suit by reason of the fact that appellant failed to bring suit upon the same at the first term of the proper court after the receipt of said letter. That letter is as follows: “Huntsville, Ala.,.May 3.0th, 189.6, “The Alabama National' Bank, “Birmingham, Ala. “Gentlemen: “Your notice concerning the note of George O. Hunt to hand. Under the circumstances of the case I shall resist my liability on the note. This is to notify you that you must take all needful legal steps to fasten on me any liability. You must sue Mr. Hunt as the law requires, and sue at once. Yours truly, (Signed) Willian Richardson.” So far as the proof discloses, the appellant bank had no notice that Richardson bore the relation of surety to Hunt, upon the note in.suit, unless the above letter disclosed it. The appellant had the right to presume that lie was a joint-maker, since it so appeared upon the face of the note, at least until the. contrary was brought home to it. — Johnson v. King, 20 Ala. 270; Summerhill v. Tapp, 52 Ala. 227. It is true, this letter does not state in so. many words that Richardson was the surety on the. note sued on. It does refer to the note, however, as that “of George O. Hunt.” This very reasonably gives the information that the note is not Ricardson’s, in the sense that he was in fact the principal obligor therein, but that Hunt was; and it would seem the bank no longer had any reasonable doubt on that subject, after the receipt of this letter. The next sentence in the letter: “Under the circumstances of the case I shall resist my liability on the note,” cannot be construed to mean that he intended to resist his liability at all events, for something already done and past, -without reference at all, to their bringing suit on the note at the next term of court in order to hold him liable thereon; and the succeeding sentence in the letter, “This is to notify you that you must take all needful legal steps to fasten on me any liability,” was a fair [521] warning to sue in the manner directed by statute to hold him. But not to be indefinite about that, he added: “You must sue Mr. Hunt as the law requires -and sue at once.” This last expression conveyed also very clearly to the mind of the bank that Hunt was the principal debtor and Bichardson was the surety. There was no-law which made such a notice necessary, if they were in fact joint principals, or Hunt was not the principal. The demand to sue “as the laAv requires, and sue at once,”' co-uld, with all reasonable certainty, be construed as meaning nothing else 'but that the relation of principal and surety existed between the parties and that the bank must sue to the first court to which the suit could be brought after the receipt of such notice. It conveys the-idea that he was asserting a right to have suit brought on the note; otherwise, it was without rational meaning. It has been held that such a notice “ought to be so clear and distinct that its meaning will strike the mind of the hearer at once and without argument. — Wollesshlare v. Searles, 45 Pa. St. 45. This case, possibly, puts the requirement of the distinctness of the notice too strongly and technically. It has been held elsewhere, and it would seem on better principle, that a substantial compliance will satisfy the requirements of the statute, and that a notice which is positive in its demand to sue, and does not mislead the creditor as to the instrument to be sued on, is sufficient. — Meriden Plate Co. v. Flory, 44 Ohio St. 430; Ronton v. Lacey, 17 Mo. 399; Brandt on Suretyship, § 605. We have been referred to the case of Shehan v. Hampton, 8 Ala. 942, as holding in substance that the notice in this case was insufficient. The notice to the executors there was, “to collect all monies due the estate of Joel Chandler, deceased, for which I stand as surety, * *■ or I shall no longer stand as surety.” There the particular note or obligation of the surety was not mentioned, nor was the creditor required to sue. The court said: “Conceding that the notice in other respects may be general, or at least with regard to the sum, date and description of the instrument by which the surety is bound, yet, in this instance, the notice or writing gives [522] no intimation .to the creditor that he is required to proceed by suit upon any note in which Joel Chandler is principal.” Properly construed, therefore, it will appear that this case is mot in conflict with the views we ¡have expressed above as to the sufficiency of this notice. We deem it sufficient, and the proof is clear, and with■oht conflict, that the suit was not brought to the first term of the court thereafter to which it might have been 'brought. It would seem that sections 3884, 3885 of the Code of 1896, include “any contract for the payment of money,” except “bonds or other contracts with collateral conditions,” or “bonds of executors, administrators, guardians, . or public ,0>f-■■fieers;” that commercial paper is not excepted from its operation, and that the question of ■the bona fide ownership of such paper, acquired for value in the usual course of trade before maturity without notice of defenses does not arise. We find no error in the record and the judgment of •the lower court must be affirmed. Affirmed.