Cadle v. Bland

GARDNER, J.

This is an action on a promissory note given by appellant to appellee, an attorney, for services rendered in a divorce proceeding. The note sued upon was executed in June, 1920. Defendant’s insistence was that the note sued upon was satisfied by the execution of another note executed by defendant and his mother to plaintiff in February, 1921, given in lieu of the note of June, 1920. The burden of proof rested upon defendant to establish this defense that the later note was given in satisfaction and by way of extinguishment of the note upon *666 which the suit was brought. Keel v. Larkin, 72 Ala. 493 .

MOre than once defendant referred to the note of 1921 as being given as security. Prima facie, it is to be considered only as collateral and additional security. Keel v. Larkin, supra.

The cause was tried on oral testimony before the court without a jury. The defendant’s evidence was uncertain, unsatisfactory, and in some respects contradictory. We are unwilling to disturb the conclusion of the trial judge on the facts.

Whether there was error in the admission in evidence of the original papers in the divorce case need not be determined. There was no plea or insistence of a want or failure of consideration, and the performance by plaintiff of the agreed services was not disputed. It very clearly appears that in no event could the introduction of these papers work any prejudice to defendant.

As to the bill of exceptions, it appears to have been established pursuant to the local act creating the Franklin county law and equity court. Local Acts 1923, p. 272. While we concur in the adverse criticism by the Court of Appeals in Honeycutt v. State, 103 So. 90 , as to this method of establishing a bill of exceptions, yet we are of the opinion this was a matter for legislative determination, and this court would not be justified in striking the same. The motion to strike the bill of exceptions'is overruled.

By supplemental brief counsel for appellant attack the constitutionality of the above-cited local act establishing the court. We are of the opinion the published notice sufficiently met the requirement of section 106 of the Constitution of 1901. The act here in question appears to have been largely fashioned after that establishing the Morgan county law and equity court held good against attack in Polytinsky v. Johnston, 211 Ala. 99 , 99 So. 839 ; Polytinsky v. Wilhite, 211 Ala. 94 , 99 So. 843 .

It may be noted in this connection that in the printed copy of House Journal (2 House Journal 1923, p. 1485) a line is omitted referring to the abolition of the county court of Franklin county and the transfer of causes therein pending to the said law and equity court. This was an error of the printer as a reference to the original Journal discloses. The original Journal controls. Dudley v. Fitzpatrick, 143 Ala. 162 , 39 So. 384 . The original, however, correctly appears in the printed Senate Journal. Volume II, Senate Journal 1923, p. 1663.

The objections to sections 17, 18, 19, and 20 are clearly without merit. These sections deal with matters of procedure in the court of which the title gave sufficient notice.

There are objections to other sections, which, even if containing merit, would not invalidate the entire act. Jackson v. Sherrod, 207 Ala. 245 , 92 So. 481 . Some of these objections are answered by this last cited authority, and we mean no indication that any of the objections are meritorious.

Further discussion we deem unnecessary. We have found no valid reason for striking down the local act as unconstitutional.

Finding no reversible error, the judgment will be here affirmed.

Affirmed.

ANDERSON, O. J., and SAYRE and MILLER, JJ., concur.