Condon v. Enger
| Court | Supreme Court of Alabama |
| Writing for the Court | BRICKELL, C.J. |
| Citation | 113 Ala. 233,21 So. 227 |
| Decision Date | 13 January 1897 |
| Parties | CONDON v. ENGER ET AL. |
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. [21 So. 228]
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...
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Mangham v. Mangham, 5 Div. 628
...130 So. 194; Alabama Nat. Bank v. Hunt, 125 Ala. 512, 28 So. 488; Crawford v. Crawford, 119 Ala. 34, 24 So. 727; Condon v. Enger & Co., 113 Ala. 233, 21 So. 227; Mann v. Hyams, 101 Ala. 431, 13 So. As was said in the case of Park v. Lide, 90 Ala. 246, 7 So. 805, which was also an appeal on ......
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McSwean v. State
...should be entered in expression of judicial action of the court, viz.: Wynn v. McCraney, 156 Ala. 630, 46 So. 854; Condon v. Enger & Co., 113 Ala. 233, [57 So. 734] 21 So. 227; Morgan v. Flexner, 105 Ala. 356, 16 So. 716; Baker v. Swift, 87 Ala. 530, 6 So. 153; Park v. Lide, 90 Ala. 246, 7 ......
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Forbes & Carloss v. Plummer, 6 Div. 180
...on the plaintiff to show both a cause of action and the suing out of process within the period mentioned in the statute." Condon v. Enger, 113 Ala. 233, 21 So. 227; 4 Mayf.Dig. As to the statute of frauds, the exception to the rule is that when issue is taken on such plea, the burden is on ......
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Willis v. Rice
...state." Wright v. Strauss, 73 Ala. 234; Crocker v. Clements, 23 Ala. 296; Conner v. Smith, 88 Ala. 300, 7 So. 150; Condon v. Enger & Co., 113 Ala. 233, [39 So. 992.] Stevenson v. Anderson, 87 Ala. 228, 6 So. 285. It is, however, absence from the state, and not mere nonresidence, which preve......
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Mangham v. Mangham, 5 Div. 628
...130 So. 194; Alabama Nat. Bank v. Hunt, 125 Ala. 512, 28 So. 488; Crawford v. Crawford, 119 Ala. 34, 24 So. 727; Condon v. Enger & Co., 113 Ala. 233, 21 So. 227; Mann v. Hyams, 101 Ala. 431, 13 So. As was said in the case of Park v. Lide, 90 Ala. 246, 7 So. 805, which was also an appeal on ......
-
McSwean v. State
...should be entered in expression of judicial action of the court, viz.: Wynn v. McCraney, 156 Ala. 630, 46 So. 854; Condon v. Enger & Co., 113 Ala. 233, [57 So. 734] 21 So. 227; Morgan v. Flexner, 105 Ala. 356, 16 So. 716; Baker v. Swift, 87 Ala. 530, 6 So. 153; Park v. Lide, 90 Ala. 246, 7 ......
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Forbes & Carloss v. Plummer, 6 Div. 180
...on the plaintiff to show both a cause of action and the suing out of process within the period mentioned in the statute." Condon v. Enger, 113 Ala. 233, 21 So. 227; 4 Mayf.Dig. As to the statute of frauds, the exception to the rule is that when issue is taken on such plea, the burden is on ......
-
Willis v. Rice
...state." Wright v. Strauss, 73 Ala. 234; Crocker v. Clements, 23 Ala. 296; Conner v. Smith, 88 Ala. 300, 7 So. 150; Condon v. Enger & Co., 113 Ala. 233, [39 So. 992.] Stevenson v. Anderson, 87 Ala. 228, 6 So. 285. It is, however, absence from the state, and not mere nonresidence, which preve......