1. Bill of Exceptions: Signing; Evidence. — It may be shown by affidavit that a bill of exceptions was not presented and signed within the time allowed by law, although it appears on its face to have been presented to and signed by the trial judge within such time.
2. Mortgages: Failure to Satisfy of Record; Penalty; Complaint. — The complaint examined and held to allege the existence of all facts necessary to show the right to the penalty provided by section 4898, Code 1907, for the failure to satisfy the record of the mortgage.
3. Same; Notice. — A notice to enter satisfaction on the mortgage record as required by section 4898, Code 1907, is properly served on the surviving partner of the partnership to whom the mortgage was executed, and hence, a complaint, in an action against a surviving partner for the penalty, which alleges that such notice was given to the surviving partner, is not demurrable for failing to show notice to the mortgagee.
4. Same. — Where the mortgagee is a partnership, notice to one of the partners is sufficient to render all liable for the penalty prescribed by section 4898. Code 1907, for failure to enter satisfaction on the mortgage record.
5. Same; Liability. — A mortgagee is liable for the penalty provided by section 4898, Code 1907. for failure to satisfy a record of the mortgage whether the failure was willful, negligent or merely inadvertent. *Page 252
(Mayfield and Simpson, JJ., dissent as to the bill of exceptions.) The bill of exceptions is a part of the record, and when completed cannot be supplemented or corrected by the aid of extrinsic evidence, oral or otherwise, which does not form a part of such record. —Stern v. Lehman, 169 Ala. 441; Edinburgh A. L. M. Co. v.Canterbury, 169 Ala. 444. The statute prescribes a penalty and must therefore be strictly construed, and cannot be extended by implication. — Grooms v. Hannon, 59 Ala. 510; Jarrett v. McCabe, 75 Ala. 325. Under the statute only a defendant who has received pay or satisfaction of the mortgage is liable for the penalty. — Sec. 4898, Code 1907; Renfroe v.Andrews, 62 Ala. 302; Williams v. Bowden, 68 Ala. 126; Gay v.Rogers, 109 Ala. 624; Hoffman v. Knight, 127 Ala. 149. Each count in a complaint containing more than one cause of action must contain in and of itself a full and complete statement of all the facts constituting the cause of action sought to be stated. — 4 Enc. P. P. 620-1;Prigmore v. Thompson, Minor 420; 31 Cyc. 71. Under these authorities, the demurrers to the complaint sould have been sustained. Charges 1 and 2 requested by appellant should have been given. — Chattanooga N. B. L. Assn. v. Echols, 125 Ala. 548. Demurrers should have been further sustained because the action was against the surviving partner, and notice was alleged to have been given to him, and not to the partnership. — Chattanooga N. B. L. Case, supra; Ayers v. Butler,156 Ala. 608; Rogers v. Brooks, 99 Ala. 31; Cooke v. Rome B. Co.,98 Ala. 409.
DORTCH, MARTIN ALLEN, for appellee.
The bill of exceptions must be signed within the time prescribed by law, and it may be shown that a bill was not signed within the time although it purported to be, and *Page 254 the bill will be stricken. — 151 Ala. 532; 116 Ala. 600; 1 Ala. 351. The demurrers cannot be considered as no valid judgment of the lower court on demurrers is shown by the transcript. — Ala. Mid. v. Brown,129 Ala. 286; Pensacola Ry. Co. v. Big Sandy, 147 Ala. 274. A payment to either partner extinguished the debt to the partnership, and laid the predicate on which to rest the request to satisfy the mortgage record, and notice to do so may have been filed with either partner and bind the partnership. — 62 Ala. 305; 75 Ala. 327; 51 Ala. 307; Brown v.Turner, 15 Ala. 832; Foster, et al. v. Thomason, 717; 1 Parsons, Notes and Bills, 502; Sec. 2506, Code 1907. The purpose of the statute is that equal publicity be given to the fact that the mortgage is satisfied, and is no longer a security or encumbrance. — 75 Ala. 422; 120 Ala. 209. There is no question but what the surviving partner is liable to the penalty if the partnership would have been liable. — Petty v. Dill,53 Ala. 641. Under the principles announced in Williams v. Hendrix,115 Ala. 277, the surviving partner was himself liable, whether the partnership was or not. It follows from these authorities that the complaint contained all the necessary averments to charge defendant for the penalty prescribed by Sec. 4898; Code 1907, for a failure to comply with its requirements. The majority of the court are of the opinion that the bill of exceptions must be stricken, on appellee's motion, because not signed within the time prescribed by the statute. It is alleged in this motion — and the allegation is supported by the affidavits of counsel for appellee — that although on its face the bill of exceptions appears to have been signed within the time allowed by the statute, and to have *Page 255 been indorsed by the trial judge in conformity to the statutory requirement as to the time of filing, yet as a matter of fact it was not so signed. The majority are of the opinion that the facts alleged in the motion may be proven by affidavits, as was done in this case, notwithstanding that it appears, by the trial judge's indorsements of the bill and by the face of the record itself, that the presentation and signing were in conformity to the statute; and that this decision is in line with the holding in the case of L. N. R. R. Co. v. Malone,116 Ala. 600, 22 South. 897, Rainey v. Ridgeway, 151 Ala. 532,43 South. 843, and Leeth v. Kornman, Sawyer Co., 2 Ala. App. 311, 56 South. 757.