Blair v. Williams

• Decision Date: 06 February 1909
• Citation: 159 Ala. 655,49 So. 71
• Parties: BLAIR v. WILLIAMS.
• Court: Alabama Supreme Court

49 So. 71

159 Ala. 655

BLAIR v. WILLIAMS.

Supreme Court of Alabama

February 6, 1909

On Rehearing, April 5, 1909.

Appeal from Circuit Court, Coosa County; S. L. Brewer, Judge.

Detinue by Joe Williams against R. W. Blair in justice court. The case was appealed to the circuit court by defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

Tyson C.J., dissenting.

D. H Riddle, for appellant.

Lackey & Bridges, for appellee.

McCLELLAN J.

Detinue for a horse, begun in a justice's court and brought to the circuit court by Blair, the defendant, appellant here. The transcript from the justice's court recites that "This day came the parties, and the defendant pleaded in short by consent, and has leave to offer in evidence any facts he specially pleaded, and issue being joined thereon. * * *" There is, of course, nothing in the transcript from the justice's court to indicate what was, in fact offered in defense of the action--its character or purport. When the cause reached the circuit court on appeal, the defendant sought to plead in abatement to the jurisdiction of the justice's court. These pleas came too late (L. & N. R. R. Co. v. Barker, 96 Ala. 435, 11 So. 453, and authorities therein cited), unless the recital quoted warrants the assumption, contended for by appellant, that such pleas were embraced in the general leave and consent to plead in short. It is extremely doubtful whether the quoted recital, in reference to the pleading before the justice, shows such a proceeding as to rise to the dignity of pleading in short by consent. 16 Ency. Pl. & Pr. p. 559 et seq., and notes. From the recital not even the nature of the plea or matter of defense is stated. Generally such short pleading by consent contains at least a suggestion of the nature of the defense, a skeleton, the formal ample statement of which only is waived by the pleading in short, by consent; else another court would be, as we are here, wholly uninformed as to what was the defense interposed. Steele v. Walker, 115 Ala. 485, 21 So. 942, 67 Am. St. Rep. 62. As indicated, to hold that the pleas in abatement, presented in this case after its removal to the circuit court, were in time, had not been waived, as to affirm that the matter in abatement, going to the jurisdiction of the justice in the premises, was brought to the attention of the primary court. In this court a complainant must show error on the record. He can only do so in this instance by an assumption without any support in the record. That such matter in abatement might have been shown under the indefinite leave appearing in the quoted recital need not be denied, in order to justify the circuit court in ignoring such matter in abatement for the reason that the appellant's obligation, if he would put the circuit court in error, is to show by the record that he in fact in the justice's court presented the matter in abatement he later undertook to assert in the circuit court. That court committed no error in its treatment of the pleas in abatement, or motion to like effect.

An estoppel was sought to be invoked, in the evidence only, by the defendant, predicated upon the asserted fact that the attorney for the plaintiff, with ample authority in the premises, silently permitted, while present, the sale of the horse in question and its purchase by defendant for a valuable consideration. Such a defense must be specially pleaded, as was not done in this instance. As a matter of authority, this court, in Jones v. Peebles, 130 Ala 269, 273, 30 So. 564, so determined the question. Therein it was said: "And we do not see how it can be held otherwise, in cases at law, whether the defense relied upon be an estoppel by record, by deed, or in pais, in view of the plain mandate of the statute, if he (the defendant) does not rely solely on a denial of the plaintiff's cause of action, he must plead specially the matter of defense." Code 1907, § 3295. In detinue, no more than in any other action at law, can it be said that the statute, quoted in Jones v. Peebles, had no effect upon the common-law rules of pleading. At common law an estoppel in pais need not have been pleaded. Bigelow's Estoppel, p. 585. Under the letter of our statute, however, the inquiry is, in all cases, whether matter asserted in defense is special in the sense that it is not comprehended in the issue made by a general traverse of the allegations of the declaration. That the estoppel attempted to be here availed of, in the testimony only, was special matter of defense, is apparent, because it goes, not to the title of the plaintiff to the chattel, nor to his right to the possession, but involves conduct on his part that affects, not to deny his right to the thing itself, but to foreclose his right to assert the truth in the premises, viz., that the property, and right of immediate possession thereof, were with him, the plaintiff. It has been often held here that, in detinue, the statute of limitations is available in defense under the general issue; but that is because, as...