Theo Poull & Co. v. Foy-Hays Construction Co.

DENSON, J. This cause is submitted on a motion to dismiss the appeal, as well as on the merits. The mo tion rests upon the ground that the appeal was not taken within the time prescribed by the statute; that the right of appeal was barred by the statute of limitations. The judgment is a final judgment, and was rendered by the circuit court of Jefferson county on the 19th day of June, 1907. The appeal was taken on the 18th day of June, 1908, more than 6 months after the rendition of the judgment, and 48 days after the Code of 1907 went into effect. The statute in force at the time the judgment was rendered allowed one year from the rendition of the judgment within which an appeal might be taken (Code 1896, § 436); but section 2868 of the Code of 1907, which became effective on May 1,1908, provides that “appeals under this chapter, except in such cases as a different time is prescribed, must be taken within six months.” It will be observed that there is no saving clause expressed in this section of the Code in respect to judgments in existénce at the time the Code took effect. The general rule is that, no contrary intention being expressed in the act — 458 — adopting a code of laws, all general statutes of a public nature in force when the Code is adopted and promulgated, and not embraced therein, are repealed by virtue of such omission, and by the laws providing for the preparation, revision, adoption, and promulgation of the Code, — Hatchett v. Billingslea, 65 Ala. 16; Carmichael v. Hays, 66 Ala. 543; Sawyers v. Baker, 72 Ala. 49; Werborn v. Austin, 77 Ala. 381; Benners’ Case, 124 Ala. 87, 26 South. 942. Under this rule there can he no doubt that section 436 of the Code of 1896 (referred to above) was repealed by the adoption and promulgation of the Code of 1907, leaving in lieu thereof, and as a substitute therefor, section 2868 of the Code of 1907. But Ave agree Avith appellee’s counsel that an appeal is a part of the remedy, and is not a vested right. — Elliott’s App. Proc. § 76; B. & P. R. R. Co. v. Grant, 98 U. S. 398, 25 L. Ed. 231; Dennison v. Alexander, 103 U. S. 522, 26 L. Ed. 313; McClain v. Williams, 10 S. D. 332, 73 N. W. 72, 43 L. R. A. 287, 289; Smith v. Packard, 12 Wis 371. This being true, it is our opinion that section 10 of the present Code continues in force the statute of limitations of one year as to all judgments rendered before the adoption of the Code (such as the one here appealed from), and saves to the appellant the appeal Avhich appellee seeks to have dismissed. The cáse of Mazange v. Slocum, 23 Ala. 668, cited by appellee, is not in conflict Avith the theory that section 10 saves the appeal, as above indicated. In that case a very different proposition Avas before the court from the one noAV before us. Section 12 of the Code of 1852 Avas under consideration. It Avill be remembered that the Code of 1852 abolished the Avrit of error as the method of bringing-civil cases to this court for revieAV, and for the first time in Alabama established appeal as the remedy. Section 3010 of that Code fixed two years as the limitation — 459 — for the suing out of appeals, and providing that it should not apply to then existing judgments and appeals. The Code took effect on the 17th day of January, 1853. After that date a writ of error (that in the Mazange-Slocum Case, supra) was issued on a judgment rendered prior to the specified date. The court held that appeal was the only remedy, and dismissed the writ. So it was the form of the remedy, instead of the question of limitations, that was involved. But it was sought in that case to save the writ of error under section 12 of the Code, which read as follows : “No action or proceeding commenced before the adoption of this Code shall be affected bv its provisions.” The court answered that contention — Chilton, C. J., delivering the opinion — as follows: “The meaning of this twelfth section is that actions and proceedings commenced before the Code took effect are. governed by the old law-as to all continuous proceedings had in the court in which they are pending; but proceedings in the nature of a new action, although predicated upon the determination of the court had under the old law, if commenced after the Code went into operation, must conform to its provisions.” It was also held that an appeal, like the writ of error for which it was substituted, was a new proceeding, and Avas the commencement of proceedings in this court to revise the action of the court beloAV, and therefore could not be regarded as the continuation of proceedings in the loAver court. In other Avords, the effect of the decision Avas that section 12 did not apply to the remedy by appeal, nor to the Avrit of error. Section 10 of the present Code provides that: “ This Code shall not affect any existing right, remedy, or defense, nor shall it affect any prosecution noAV commenced, or which shall be hereafter commenced, for any offense already committed. As to all such cases the laws — 460 — in force at the adoption of this Code- shall continue in force.” We think it cannot be doubted that to abridge the time within, which an appeal may be taken would affect the right of or remedy by appeal. In this case, for instance, if the six-months statute he held to apply to the judgment here appealed from, the appeal was lost when the Code became effective. We are clear in our conclusion that section 10 of the Code continues in force the limitations of one year for appeals from judgments rendered prior to the 1st day of May ,1908. Therefore the motion to dismiss the appeal is overruled. The action is one for breach of a contract or agreement alleged to have been made between the parties, whereby plaintiff agreed to do certain work for the defendant on the Birmingham high school building; the defendant having contracted with that city to construct such building. It is alleged in the first count of the complaint, which is a special count for breach of the agreement, that plaintiff complied with all the provisions of the contract, but that defendant breached it by not paying the consideration ($1,000) stipulated in the agreement. It is shown in the count that the consideration was to be paid on the completion of the work. The averments of this count are an answer to the ground of demurrer insisted upon, that the count does not allege the amount claimed as due and unpaid. Whether the demurrer to the second replication to plea 8 was or was not improperly overruled is immaterial, as the evidence without conflict showed that there was no breach of the contract of July 17, 1905, set up in said plea. The defendant himself testified that there was no material difference between him and the plaintiff “as to the work under that contract.” Consequently defendant was entitled to nothing so far as that plea was concerned, even if the replication had not been in the case. — 461 — If a defendant lias suffered damages, on account of a breach by the plaintiff of the contract upon which the plaintiff bases his cause of action, a plea of recoupment is the procedure by which defendant may bring the matter before the court and have his damages considered.— Behrman v. Newton, 103 Ala. 525, 529, 15 South. 838. For this reason we see no reversible error in the action of the court in giving charge 2, requested by the plaintiff. The defendant’s defense is that plaintiff had breached, to the defendant’s damage, a contract made April 1, 1905; and there is' testimony in the record which tends to support the defense. The plaintiff requested, and the court gave, the following charge: “(5) I charge you, gentlemen of the jury, that to constitute proof of a breach of contract executed by plaintiff and defendant April 1, 1905, upon the part of the plaintiff, it must he shown that the terms of the contract, including plans and specifications, or some one provision or term thereof, has been broken.” This charge is criticised, in brief of appellant’s counsel, as being invasive of the province of the jury. The criticism is inapt. The proposition of law involved in charge 6, given for the plaintiff, is correct; and while the charge is misleading in its tendencies, and the court could well have refused it on this account, yet the defendant could have protected himself against its misleading tendencies, and the court will not be put in error for giving it. — Woodward Iron Co. v. Curl, 153 Ala. 215, 44 South. 969. Charge 4, as copied in the transcript, correctly defines set-off, and was properly given. The charge is not the same as charge 4 set out in appellant’s brief, and we have found in the record no charge corresponding with that so quoted by the appellant. But, waiving this point, and taking the brief of counsel as referring to charge 3, — 462 — which he sets out, and which is covered by the sixth ground in the assignment of errors, the court cannot be put in error for giving charge 3, because the evidence of the defendant, Theo. Poull, showed without dispute that there wras no material difference between plaintiff and defendant as to the work done under the contract of July 17, 1905, the one sued upon. Therefore plaintiff’s demand was proved, and the first postulate of the charge, if erroneous, could not possibly have worked injury to defendant, and the remainder of the charge was misleading merely. The court did not err in overruling the motion for a new trial. We have treated all the grounds of error insisted upon in the briefs, but can sustain none, and the judgment appealed from is affirmed. Affirmed. Tyson, C. J., and Simpson and Mayfield, JJ., concur.