Opinion
6 Div. 823.
March 6, 1941.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Barber Barber, of Birmingham, for appellant.
The count on which the trial was had attempted to use the Code form but omits the words "between the plaintiff and defendant" or words of like import. It fails to state a cause of action. Carlisle v. Davis, 9 Ala. 858; 1 C.J. 723, 742, 743; 1 Cyc. 390; 1 Ency.Pl. Pr. 88; Clay County Abstract Co. v. McKay, 226 Ala. 394, 147 So. 407; Denson v. Kirkpatrick, 225 Ala. 473, 144 So. 86; Fowler v. Mackentepe, 233 Ala. 458, 172 So. 266. The complaint failing to state a cause of action, there is nothing on which to rest a verdict and judgment. Code, § 7858; Pulliam v. Schimpf, 109 Ala. 179, 19 So. 428; Davis v. Douglass, 12 Ala. App. 581, 68 So. 528. A special replication must either traverse or confess and avoid. Burnett Bean v. Miller, 205 Ala. 606, 88 So. 871; Sovereign Camp, W. O. W., v. Moore, 235 Ala. 117, 177 So. 642; Southern Home Ins. Co. v. Boatwright, 234 Ala. 668, 176 So. 460. Replication 1 is not sufficient as a complete answer to the plea. Code, § 9477; Clancy v. Taylor, 12 Ala. App. 557, 68 So. 522; Western Assur. Co. v. McGlathery, 115 Ala. 213, 22 So. 104, 67 Am.St.Rep. 26. Defendant's pleas in accord were good. Code, §§ 5640-5642; Peinhardt v. Bonner, 232 Ala. 566, 169 So. 11; Morgan Pav. Co. v. Carroll, 211 Ala. 121, 99 So. 640; Arnold v. Gibson, 216 Ala. 314, 113 So. 25; Hopson v. Eller, 216 Ala. 556, 114 So. 52; Phillips v. Harvey, 239 Ala. 605, 196 So. 498. Plea 10 sufficiently shows fraud. Riddle v. Batson, 16 Ala. App. 566, 80 So. 140; Steiner Bros. v. Slifkin, 237 Ala. 226, 186 So. 156. Replications setting up statute of limitations as to pleas of recoupment are not sufficient. Code, § 8947(1); Wright v. Preston, 55 Ala. 570; State ex rel. Chambers v. Bates, 233 Ala. 251, 171 So. 370. Defendant's motion to transfer cause to equity docket was good and sufficient, and the ruling sustaining demurrer thereto is available on this appeal. Code, § 6490.
Aird Fox and W. T. Edwards, all of Birmingham, for appellee.
Objection to complaint for defect in form cannot be allowed if facts are so presented that opposite party can take material issue thereon. Code, § 9457; Ruffin Coal Co. v. Rich, 214 Ala. 622, 108 So. 600; Adler Co. v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A., N.S., 889. The purpose of a bill of particulars is to amplify the very general form of a common count. The pleading and bill of particulars should be construed together. Amendments may be allowed to cure defects and imperfections of form while the cause is in progress. Gibbs-Hargrave Shoe Co. v. Peek, 212 Ala. 633, 103 So. 672; 49 C.J. 629; Code, §§ 9513, 9516. Rulings on pleading will be regarded as academic and not reviewed on appeal where party was entitled under other pleadings to introduce all evidence that he could introduce under all his pleadings. Stewart v. So. R. Co., 5 Cir., 168 F. 685, 94 C.C.A. 171; Alabama Steel Wire Co. v. Thompson, 166 Ala. 460, 52 So. 75; Sunny South Grain Co. v. National Feed Co., 20 Ala. App. 145, 101 So. 542; Ala.Dig., Appeal Error, 1040(6), p. 831.
This is an action of assumpsit by the appellee against appellant. The original complaint consists of four counts, but all counts, except the third count declaring on account stated, were withdrawn. Said count three is in the following words: "Plaintiff further claims of the defendant the sum of Two Hundred Forty seven 25/100 Dollars on account stated between the plaintiff and the defendant on the 19th day of Sept., 1933, which sum of money with interest thereon is due and unpaid." [Italics supplied.]
The plaintiff amended by adding Count A written on "yellow paper" in words as follows: "The plaintiff claims of the defendant two hundred forty seven and 25/100 ($247.25) due from the defendant on account stated on, to-wit, the 19th day of September, 1933, which sum of money, together with the interest thereon is still due and unpaid."
The defendant demurred to the complaint and each count thereof on the grounds:
"1. For that said complaint does not state a good cause of action.
"2. For that the complaint shows that there is a misjoinder of causes of action."
The demurrer was sustained to said third count and overruled as to Count "A" under which the case went to the jury.
Said third count followed literally Form 11, prescribed by § 9531, Code of 1923, page 502, and count A, while it omitted the averment italicized in said third count, followed "substantially" said form (Code 1923, § 9531) and is not subject to the ground of demurrer first above stated. Code 1923, § 9479.
Count A and said third count on their face related to the same subject matter, and the amendment was within the lis pendens and it was allowed without error. Code 1923, § 9513; Mobile Light Railroad Co. v. Portiss, 195 Ala. 320, 70 So. 136.
It was permissible for the court to allow the bill of particulars as amended refiled; and the motion to strike, subsequently made was properly overruled. Gibbs-Hargrave Shoe Co. v. Peek, 212 Ala. 633, 103 So. 672.
The court did not err in sustaining the plaintiff's demurrer to defendant's plea 5. As a plea of accord it is bad in failing to aver that the accord was executed, or that there was a consideration and an acceptance thereof by the plaintiff. Code 1923, §§ 5641, 5642.
The subject matter of defendant's plea 6 is a claim sounding in damages merely; not growing out of matters set forth in the complaint. The demurrer to said plea was properly sustained. Code 1923, § 10172; Lawton et al. v. Ricketts, 104 Ala. 430, 16 So. 59.
The averments of plea 7 fall short of showing accord and satisfaction, and is defective as a plea of set-off in that it does not aver that the claims or debts sought to be set-off were subsisting claims between plaintiff and defendant at the commencement of the suit. Code 1923, § 10172; St. Louis Tennessee River Packet Co. v. McPeters, 124 Ala. 451, 27 So. 518; Drennen v. Gilmore Brothers, 132 Ala. 246, 31 So. 90, 90 Am.St.Rep. 902.
The defendant's plea 10, construing its averments most strongly against the pleader, is subject to the same demurrable defects as plea 7. Moreover, said plea starts out by the pleader's conclusion that the plaintiff procured the signature to the stated account by fraud "in this" and the averments following do not show fraud.
The appellant next insists that plaintiff's replication 1 — "Plaintiff denies each and every allegation of said plea" — is not a joinder of issue on the pleas to which the replication is addressed. This contention is without merit. The replication is a traverse of the truth of the averment of the plea, and is in substance and legal effect a joinder of issue on the plea. Code 1923, § 9477; Wright v. Forgy, 126 Ala. 389, 28 So. 198; Cotton States Life Ins. Co. v. Crozier, 216 Ala. 537, 113 So. 615.
The defendant's pleas of set-off allege that the assignment of the account by Arlie Barber to defendant, the subject of said pleas, was made on the 19th of September, 1933, the date on which the account sued on was alleged to have been stated. The plaintiff's 5th replication asserts that at that time the alleged claim of Arlie Barber so transferred was barred by the statute of limitations. This was a good answer to the plea. Code 1923, § 10177.
The refusal of a motion to transfer a case from the law docket to the equity docket or the sustaining of a demurrer to a motion to transfer is not reviewable on appeal from a final judgment in the action. It is only when the transfer is made and the case has proceeded to final judgment or decree that the statute authorizes an assignment of error on the ruling transferring the cause. Code 1923, § 6487; Ex parte Holzer, 219 Ala. 431, 122 So. 421.
The appellant's insistence that the court erred in overruling his several motions for "judgment non-obstante veredicto" is rested on the contention that count A of the complaint does not state a substantial cause of action and will not support the judgment for the plaintiff. We have disposed of the question in considering the sufficiency of the count as against the defendant's demurrer.
The plaintiff offered the stated account declared on, and rested. The stated account was in the following words and figures, to wit:
" 'September 19, 1933.
" 'In final settlement between P. D. Martin and myself I owe him a difference of $247.25.
" 'Amzi G. Barber " 'O. K. P. D. Martin' "
This made a prima facie case for the plaintiff and cast upon the defendant the burden sustaining his special defenses. Cook Co. v. Malone Sons, 128 Ala. 662, 29 So. 653; Sloan Son v. Guice, 77 Ala. 394.
This answers the appellant's insistence that there was no evidence that the account sued on was not paid.
The evidence offered by the defendant to establish his pleas of set-off, and as to what entered into the alleged settlement between him and the plaintiff took a wide range, and plaintiff was allowed by the court without error to state fully his version of the transactions, not only between himself and the defendant, but also as to the constituent elements of the accounts between plaintiff and Arlie Barber which Arlie Barber had assigned to defendant. Pollack v. Gunter Gunter, 162 Ala. 317, 50 So. 155.
The evidence clearly presented a case for jury decision. The several charges requested by the defendant were either bad in form or invasive of the province of the jury and were refused without error.
The motion for new trial was properly overruled. We find no errors in the record.
Affirmed.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.