Cooley v. U.S. Savings & Loan Co.

• Decision Date: 14 November 1905
• Citation: 39 So. 515,144 Ala. 538
• Court: Alabama Supreme Court
• Parties: COOLEY ET AL. v. UNITED STATES SAVINGS & LOAN CO.

39 So. 515

144 Ala. 538

COOLEY ET AL. v. UNITED STATES SAVINGS & LOAN CO.

Supreme Court of Alabama

November 14, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by the United States Savings & Loan Company against John L Cooley and others.From a judgment of the circuit court after the case had been removed from a justice of the peace in favor of the plaintiff, defendants appeal.Affirmed.

This was an action of forcible entry and detainer, commenced in the justice court, and removed on application of the defendants to the circuit court under sections 2147and2148,Code 1896, and there tried.This issue of fact was decided by the jury, and judgment rendered thereon, on November 13 1903.The bill of exceptions was presented to the trial judge on the 11th day of January, 1904, with the request that it be signed at once.Owing to press of work, it was not signed, but the judge granted an extention of time for 30 days in which to have the bill signed.This order was not entered on the record and minute entry made of it until January 13, 1904.The bill was signed on January 30, 1904.These facts, explanatory of the judge's failure to sign the bill when presented and his subsequent action, appear in the bill of exceptions signed by him.There was motion by the appellee to strikethe bill of exceptions from the record because it was not signed in time.The case was submitted on motion to strike and on the merits.

B. M. Allen and J. W. Crews, for appellants.

A. C. and H. R. Howse, for appellee.

DENSON J.

This was an action of forcible entry and detainer, commenced before a justice of the peace.The defendants having complied with sections 2147and2148 of the Code of 1896, which provides for the removal of such actions from the justice of the peace to the circuit court, the action was removed for trial to the circuit court.From a judgment rendered against the defendants in the circuit courtthe defendants appealed to this court.

Section 2149 of the Code of 1896 provides that, on the trial of all cases removed under the provisions of sections 2147and2148 of the Code to the circuit court, the plaintiff must recover on the strength of his own title, as in a statutory action of ejectment, etc.The complaint was amended in the circuit court with respect to the description of the property sued for.In an action of ejectment, where there is no disclaimer of possession, the only appropriate plea is the plea of not guilty.So in this case the matters alleged in the special pleas, if available to the defendants, were available to them under the plea of the general issue, and there was no necessity for, nor appropriateness in, the special pleas.The court might properly have stricken them from the file ex mero motu.Bynum v. Gold,106 Ala. 427, 17 So. 667;Lomb v. Pioneer Savings & Loan Co.,106 Ala. 591, 17 So. 670;Etowah Mining Co. v. Doe ex dem. Carlisle, 127 Ala. 663, 29 So. 7;Smith v. Cox,115 Ala. 503, 22 So. 78;Richardson v. Stephens,114 Ala. 238, 21 So. 948.However, no motion was made to strike special pleas 1 and 2, and they were not stricken; but a replication to them was filed by the plaintiff.The overruling of a demurrer to the replication is the only assignment of error with respect of the rulings of the court on the pleadings.The record shows that, after the demurrer was overruled, by leave of the court the replication was amended.It is further shown by the record that the demurrer to the replication, as amended, was overruled.The record fails to show the demurrer that was interposed to the replication as amended, and we cannot know what it was, and cannot pass upon the ruling of the court overruling it.After the amendment was made the replication was not the same that it was when the court overruled the demurrer to it, and if the defendants desired the benefit of the demurrer, which was filed previous to the amendment, against the replication as amended, they should have refiled same.L. & N. R. R. Co. v. Woods,105 Ala. 561, 17 So. 41;S. A. & M. Ry. v. Buford,106 Ala. 303, 17 So. 395;West. Union Tel. Co. v. Crawford,110 Ala. 460, 20 So. 111.

The motion made to strikethe bill of exceptions must prevail.Section 10 of the act regulating the practice in civil cases tried in the circuit court of Jefferson county, approved February 28, 1889(Laws 1889, p. 801), provides that bills of exceptions must be signed within 60 days after the day on which the issue or issues of...