Condon v. Enger

• Decision Date: 13 January 1897
• Citation: 113 Ala. 233,21 So. 227
• Parties: CONDON v. ENGER ET AL.
• Court: Alabama Supreme Court

21 So. 227

113 Ala. 233

CONDON v. ENGER ET AL.

Supreme Court of Alabama

January 13, 1897

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by George Enger & Co. against J. P. Condon. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Richard H. Fries, for appellant.

Cabaniss & Weakley and George Huddleston, for appellees.

BRICKELL C.J.

The action in which the appellees were plaintiffs and the appellant was defendant was commenced on the 7th day of March, 1893, founded on four promissory notes past due for more than six years before the commencement of suit. The defendant pleaded in the form prescribed by the Code, the statute of limitations of six years, to which the plaintiffs replied generally, and filed two special replications. The first avers "that the defendant has not lived in this state a sufficient length of time to create a bar under the statute of limitations"; and the second avers "that the notes were made in the state of Texas, and that defendant has not lived in this state for 6 years since the execution of said notes." The defendant demurred to the latter replication, but the ruling or judgment of the court on the demurrer is not shown by the minute or judgment entries found in the transcript. It appears only from entries said to be found on the docket of the presiding judge which the clerk has incorporated in the transcript. If these memoranda exist they are material from which the minute and judgment entries should have been constructed and completed; but they are not the memorial of the proceedings and rulings of the court importing absolute verity, which it is the duty of the clerk to certify to this court. Park v. Lide, 90 Ala. 246 7 So. 805; Speed v. Cocke, 57 Ala. 209; Farmer v. Wilson, 34 Ala. 75. We cannot consider the assignment of error relating to the overruling of the demurrer.

As the case is presented, there is no occasion for considering or deciding any other question than upon which party the burden of proof devolved,-whether it was upon the plaintiffs to show that the defendant had not lived in the state for the period of six years subsequent to the making of the notes, or was it upon the defendant to show that he had lived in the state for that period. And, in considering this question, we do not intend to indicate any opinion in regard to either replication,-whether they do, or do not, raise immaterial or false issues, or are subject to demurrer for insufficiency. Whatever may be true in this respect does not affect the question upon which party the law devolves the burden of proof.

When the plaintiff's case is prima facie within the bar of the statute of limitations, and the statute is pleaded as a defense, if there be any cause or reason for excepting the case from the operation of the statute, the plaintiff must by special replication, put such matter in issue. Bercy v. Lavretta, 63 Ala. 374; Morrison v. Stevenson, 69 Ala. 448. The statute creates the bar, and declares the particular cases in which it shall not operate, or, rather, the exceptions to its operation. As was said in Bercy v. Lavretta, supra: "Whoever relies on the exception, to relieve him from the operation of the general rule, must state facts which show he is within the exception." And as was said in Morrison v. Stevenson, supra: "In its nature and operation, the statute creates an exception to the general statute of limitations. It withdraws a particular case, which otherwise would fall within the words and bar of the statute. A party insisting on an exception to the bar of the statute of limitations must point out the exception, and bring himself within its saving terms." In Ang. Lim. § 292, the rule is stated that, when any special matter is relied on to avoid the bar of the statute, it must be replied specially to the plea. The notes appearing on their face to have matured more than six years before the commencement of the suit were prima facie within the bar of the statute. Though the fact was apparent on the face of the complaint, the defendant could not by demurrer avail himself of the statute. He was bound to plead it specially. The principal, controlling reason for not permitting a defendant in courts of law, by demurrer, to avail himself of the statute, is that thereby he would deprive the plaintiff of the opportunity of replying that the case was within some one of the...