Fleming v. Copeland , 210 Ala. 389 ( 1923 )

It is, of course, well settled that a decree may be in part final and in part interlocutory merely, and that there may, in this sense, be several final decrees. Jones v. Wilson, 54 Ala. 50; Broughton v. Wimberly, 65 Ala. 549; Cochran v. Miller,74 Ala. 50; Adams v. Sayre, 76 Ala. 509; Gainer v. Jones, 176 Ala. 408,58 So. 288.

It is contended by appellee that the decree of October 12, 1921, was, as to the disputed items of account therein determined on exceptions to the register's report, a final decree which could be reviewed only by an appeal therefrom within six months; and hence that it cannot now be reviewed by assignment of error on appeal from the final decree on the register's report rendered on June 2, 1922.

We think, however, that the entire structure of the decree in question shows that it was not intended as a final adjudication of all matters of accounting, but that the final conclusion on the whole accounting was reserved for future adjudication. If a single item of account remains undetermined, though the decree settles all other items, the decree is interlocutory in character, and will not support an appeal. Garner v. Prewitt,32 Ala. 13, 18. Very clearly in this decree the item of a reasonable attorney's fee in favor of defendant, though ascertained without authority on the first reference, was submitted again for ascertainment. We therefore are constrained to hold that the decree of October 12, 1921, was an interlocutory decree, and is assignable for error on this appeal.

It is further contended by appellee that since Exhibit A to defendant's testimony is not incorporated in the record, we cannot review the judge's findings of fact based in part upon his consideration of that document. The rule invoked is, of course, not to be denied; but it has its qualifications. It is not applicable here for the reason that the testimony shows clearly that the exhibit in question is nothing but a loose-leaf ledger sheet, and that, so far as the three disputed balances for 1906 are concerned, the sheet shows merely a statement of these balances by name, and they were disallowed by the court for the reason merely that the items making up the balances were not shown. The rest of the sheet has nothing to do with those balances, but includes only new items for the year 1907, and the years following.

The point is made also that the register's report recites that the respective attorneys in the case "file briefs, and to each brief is attached a statement of the account as contended for by the attorney filing same. These briefs and statement of the account are on file with the papers in this cause" — and that these papers, used by the register on the hearing, are not in this record. It is hardly necessary to say that the briefs of counsel, with the statements of their contentions, were not evidence in the case, and could not have been properly included in the record.

Independently of the loose-leaf ledger sheet itself, respondent's testimony clearly shows that the first three items on that sheet (referred to by respondent as Exhibit A to his testimony) are balances charged against complainant for the year 1906; two of them being in favor of the individuals, Fleming and Lightfoot, before their consolidation in August, 1906, and the third in favor of the consolidated firm. These items are, severally, $57.42, $367.89, and $4.75, and, in the aggregate, $430.06.

Neither defendant, nor his bookkeeper, nor his salesman, could testify as to the items that entered into these balances; and if the ledger sheet had been the only evidence tending to show the correctness of the amounts thus charged as balances, we would agree with the trial court in the propriety of their disallowance. But defendant's testimony shows that at the end of each month he told complainant how much he had traded that month, and that at the close of each year they figured up the balance due on the account, and that this balance was carried into a new mortgage then given to cover the balance for the old year and the estimated amount of advances for the new year.

This was not denied by complainant, who testified merely that the items of the account — the items which in the aggregate made up the balance — were never called over to him; and he admitted that a balance was carried over from 1906 into 1907.

The settled rule is that —

"If the account impeached be a settled account, or if an instrument has been executed on the foot of it, the court expects that the errors should be specified in the bill and proved as specified. * * * When an account is stated and settled by the giving an independent security, that security becomes prima facie a debt owing according to its terms." Paulling v. Creagh's Adm'rs, 54 Ala. 646, 652, 653; Kilpatrick v. Henson, 81 Ala. 464, 469, 1 So. 188; Cudd v. Cowley,203 Ala. 665, 85 So. 13; Crowson v. Cody, 207 Ala. 476, 477,93 So. 420.

This rule is applicable here, and its effect is to impose upon complainant the burden of showing the incorrectness of these balances. No such evidence being before the court, the attempted impeachment fails, and the balances must be allowed as settled charges against complainant.

We are not disposed to disturb the other findings of the trial court, and the judgment for appellee for $936.96 will be corrected by deducting from it the amount of $430.06, and as thus corrected the judgment will be affirmed at the cost of appellee.

Corrected and affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.

On Rehearing.