Carter v. Tenn. C. I. & R. R. Co.

ANDERSON, J. We are not impressed Avith the suggestion of appellee’s counsel that the assignment of errors does not conform to rule 1 (20 South, iv), because made Avith a typeAvriter instead of being Avritten. Section 1 of the Code, among other things, says, “Writing includes printing on paper.” We therefore hold that, Avhen errors are assigned in the proper place on the record, the fact that it is done Avith a typeAvriter is to be commended rather than criticised. S'ection 4045 of the Code of 1907 provides for the personal attendance .of a Avitness, even after his deposition has been taken, under the conditions therein prescribed, and for the suppression of the deposition Avhen the Avitness has been subpoenaed, etc. It appears that Avhen the demand ivas made for the personal attendance of the Avitness Lamar he Avas out of the state, and could not then be reached Avith a subpoena, and the trial court therefore did not err in refusing the appellant’s motion. The court excluded, upon the preliminary motion, all of Exhibit A to Lamar’s deposition, except a small portion of same; but it does not appear that any of Exhibit A Avas ever offered by the plaintiff. It offered the deposition and Exhibit B thereto. The Avitness Lamar testified that he Avould not be positive Avhether the deed from Boshell et al. to Ferguson was actually filed in the probate office by himself or Wall, but he also stated that he knew it Avas filed, [372] as he saw and examined it in the probate office after it had been filed; so it mattered not whether he or Wall made the physical delivery, as they were associated together, and he is positive that one of them took it to the office. We think a sufficient predicate was laid as to the loss of the deed to admit. secondary proof of same. Lamar and Wall last traced it into the probate office and disclaimed the subsequent possession of same, and searches were made where papers left for record were kept by one of them and Mrs. Palmer, the clerk who rceipted for same, and again by one of them and the probate judge. There may have been another clerk in the office, but the deed had never been traced into his custody or control; and we cannot say that the predicate was insufficient, because he, too, was not examined, ánd disclaimed any knowledge of its whereabouts. This holding is not in conflict with the cases of Huggins v. So. R. R. Co., 159 Ala. 189, 49 South. 299, and Abingdon Mills v. Grogan, 167 Ala. 148, 52 South. 596. In those cases the proof did not show a search by the party with whom it was left or of the last place to which it was taken. We did not hold that the search had to be made by every person connected with the last place to which the lost paper had been taken or was left. It may be that the witnesses Wall, Ferguson, Kimbrell, and Boshell should not have been permitted to designate the instrument involved as a deed; but this ruling, if error, was cured by the subsequent undisputed proof. The document was traced from the grantors to Ferguson, the grantee, and through him to Lamar, and its contents were proven, and which showed it was a deed. Assignment of error 20 refers to the deed from the Alabama company to Adams & Burlin. The record [373] discloses no objection to the introduction of this deed; and, whether it was properly acknowledged or not, it was a valid link in the plaintiff’s chain of title, as the acknowledgment was sufficient as an attestation, and to save it as a deed. The exceptions to the oral charge cannot be considered, as it does not affirmatively appear that they were reserved before the jury retired.—Moore v. State, 146 Ala. 687, 40 South. 345; Tice v. State, 3 Ala. App. 164, 57 South. 506, and cases there cited. The parties claimed title under Boshell, as a common source, and if his widow and heirs conveyed the land to Ferguson before making the deed to defendant’s grantor Powell they had no title to the land, when executing said deed to Powell; and if said deed to Ferguson was filed in the probate office for record, whether subsequently recorded or not, the filing of same was sufficient protection to Ferguson and his grantees, as con'structive notice of said deed.—Chapman v. Johnson, 142 Ala. 633, 38 South. 797, 4 Ann. Cas. 559; Eufaula Bank v. Pruett, 128 Ala. 470, 30 South. 731. There was no error in giving the plaintiff’s requested charges. We have considered all of the assignments of error that have been properly insisted upon in brief of counsel, whether discussed in the opinion or not, and we find no reversible error in the rulings of the trial court; and the judgment is accordingly affirmed. Affirmed. Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.