Opinion
6 Div. 251.
November 7, 1933. Rehearing Denied November 21, 1933.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Action by the Milwaukee Tool Forge Company against H. D. Singletary, who filed pleas in recoupment and set-off. From a judgment for defendant in an unsatisfactory amount, he appeals.
Affirmed.
Certiorari denied by Supreme Court in Singletary v. Milwaukee Tool Forge Co. (6 Div. 498) 151 So. 600.
The original complaint consisted of the common counts.
Defendant interposed plea of the general issue and pleas 2, 3, and 4, alleging that plaintiff was, at the time of the institution of the suit, due defendant the amount claimed in the complaint (2) by account, (3) by account stated, and (4) for work and labor done. By plea 2, as to said amount, defendant "offers to recoup against the demand of the plaintiff." By pleas 3 and 4 said sum is claimed of the plaintiff by the defendant.
Plaintiff thereafter amended its complaint by striking all counts as originally filed and adding count 7, being a count in detinue for certain tools.
Defendant filed objections to the amendment and motion to strike, on the ground that the amended complaint constituted a complete departure from the original complaint. The objections and motion to strike were overruled.
By amendment, the words "set off" were added to plea 2, after the word "recoup." Pleas 3 and 4 are amended so as to claim the sum alleged therein to be due "under plea of set off." Each plea is amended by adding "and the defendant claims judgment of the plaintiff for the excess."
The jury returned a verdict for the defendant "under the plea of set off and assess his damages at $1.00 one dollar."
M. B. Grace and Kelvie Appelbaum, both of Birmingham, for appellant.
The complaint may not be so amended as to constitute an entire new cause of action or change the form of action. Huggins v. So. R. Co., 148 Ala. 153, 41 So. 856; Townes v. Dallas Mfg. Co., 154 Ala. 612, 45 So. 696; Montgomery Tr. Co. v. Fitzpatrick, 149 Ala. 511, 43 So. 136, 9 L.R.A. (N.S.) 851; Steele v. Booker, 205 Ala. 210, 87 So. 203; Rice v. Davidson, 211 Ala. 693, 101 So. 604; C. of G. R. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Gambill v. Fox T. Co., 190 Ala. 36, 66 So. 655; L. N. R. Co. v. Laney, 14 Ala. App. 287, 69 So. 993; Code 1923, § 9467; Ashley v. Hill, 21 Ala. App. 603, 110 So. 597, 598; L. N. R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; First Nat. Bank v. Morgan, 213 Ala. 125, 104 So. 403. Plaintiff may not deprive defendant of his cause of action, by plea of set-off or recoupment, by taking a nonsuit. Sternberg v. Bonfeld, 19 Ala. App. 594, 99 So. 659; Eads v. Murphy, 52 Ala. 520; M. M. R. Co. v. Clanton, 59 Ala. 392, 31 Am. Rep. 15; Burnett Bean v. Miller, 205 Ala. 606, 88 So. 871; Lang v. Waters' Adm'r, 47 Ala. 624. Motion for judgment non obstante veredicto may be made by the party entitled to judgment after verdict and before entry of judgment. 33 C. J. 1187; Ex parte Dean Jones, 154 Ala. 265, 45 So. 152. The verdict is not sustained by the evidence, and the motion for judgment non obstante should have been granted. 33 C. J. 1178; Birmingham v. Andrews, 222 Ala. 362, 132 So. 877.
H. H. Grooms, J. S. Mead, and Coleman, Spain, Stewart Davies, all of Birmingham, for appellee.
The court properly allowed appellee to amend its complaint by striking the original counts ex contractu and adding in lieu thereof a count ex delicto. Code 1923, §§ 9467, 9513; Ashley v. Hill, 21 Ala. App. 603, 110 So. 597; L. N. R. Co. v. Laney, 14 Ala. App. 287, 69 So. 993; Lisenby v. Capps, 200 Ala. 20, 75 So. 332. No set-off or recoupment is allowed against an action in detinue except where plaintiff is a mortgagee or conditional vendor, and then not exceeding the damage for detention, and no judgment can be awarded for any excess. Stewart v. Burgin, 219 Ala. 131, 121 So. 420; Davis v. Reid L. Co., 204 Ala. 517, 86 So. 379; Brock v. Forbes, 126 Ala. 319, 28 So. 590; Whitworth v. Thomas, 83 Ala. 308, 3 So. 781, 3 Am. St. Rep. 725. Defendant is entitled to a judgment non obstante veredicto only when the verdict for plaintiff was surely upon a count which did not state a substantial cause of action. Code 1923, § 7858; 33 C. J. 1181; Birmingham v. Andrews, 222 Ala. 362, 132 So. 877; Sharp v. N Y Underwriters' Ins. Co., 225 Ala. 700, 142 So. 918.
The appeal in this case is on the record. There is no bill of exceptions.
The minute entry recites that the defendant (appellant) withdrew his demurrers to the complaint as last amended, "and files by written paper additional objections to the allowance of amendment of complaint," which were overruled, "and defendant excepts."
The defendant then filed pleas 1, 2, 3, 4, A, B, C, D, E, F, and G. All of the pleas, except 1 and A, the general issue, were eliminated by demurrer.
Pleas 2, 3, and 4 were then amended over plaintiff's objection and a demurrer to these pleas was overruled.
Pleas A, B, C, D, E, F, and G were then withdrawn, and the plaintiff filed replication 1, and issue being joined, a jury rendered a verdict for the defendant under his plea of set-off and assessed his damages at $1.
The defendant moved for a verdict non obstante veredicto, which was overruled. The defendant moved for a new trial, which was overruled.
This résumé of the record shows that the only questions we can be called on to review are: (1) The action of the court in allowing the amendment to the complaint. (2) The action of the court in sustaining the demurrer to pleas 2, 3, and 4. (3) The action of the court in overruling the motion non obstante veredicto. And (4) the overruling of the motion for a new trial.
The amendment to the complaint was properly allowed under section 9513 of the Code 1923. The action of the court in sustaining the demurrer to pleas 2, 3, and 4 was without injury, as the pleas, as amended, were substantially the same as the original pleas, and under the pleas, as amended, the defendant had every right and benefit that he could have had under the original pleas. While there is a reference in the minute entry to a motion for a judgment non obstante veredicto, which the minute entry recites was overruled, the motion itself is not in the record, nor are there any recitals in record showing the propriety of granting such motion. No error in that regard appears. City of Birmingham v. Andrews, 222 Ala. 362, 132 So. 877.
In the absence of evidence on which the case was tried, it is impossible for us to say that the rulings on the motion for a new trial were infected with error. The burden is on the appellant to show error. There is no presumption of error in this court.
The judgment of the court below is affirmed.
Affirmed.