Cross v. Esslinger

• Decision Date: 24 April 1902
• Citation: 32 So. 10,133 Ala. 409
• Parties: CROSS v. ESSLINGER.
• Court: Alabama Supreme Court

32 So. 10

133 Ala. 409

CROSS v. ESSLINGER.

Supreme Court of Alabama

April 24, 1902

Appeal from circuit court, Madison county; O. Kyle, Judge.

Action by J. C. Cross against B. F. Esslinger. From a judgment for defendant, plaintiff appeals. Affirmed.

This suit was brought bythe appellant, J. C. Cross, against the appellee, B. F. Esslinger, to recover the statutory penalty under section 1065 of the Code of 1896 for failure to mark "Partial Payment" on the margin of the record of a mortgage, after request in writing. The defendant pleaded the general issue and two special pleas, Nos. 2 and 3. The plaintiff demurred to these pleas, which demurrers were overruled. Thereupon the plaintiff filed several replications to the second and third pleas. The defendant moved the court to strike these replications from the file upon the ground that they present no facts that could arise on the joinder of issue upon the pleas to which the replications were filed and because said replications were no answer to the said pleas. The court sustained this motion, and ordered the replication stricken from the file. The judgment entry recites: "Plaintiff declining to plead further, and no evidence being taken, issue being joined upon the plea of the general issue, thereupon comes a jury," etc. Judgment was rendered in favor of the defendant. The plaintiff appeals, and assigns as error the rulings of the court upon the evidence.

Jas. H Ballentine, for appellant.

McCLELLAN C.J.

The appellant is in no plight to have this court review the rulings of the circuit court on his demurrer to the special pleas and on the motion of defendant to strike his replications to said special pleas. The demurrer to the special pleas having been overruled, and the replications to said pleas having been stricken, there was left in the case defendant's pleas of the general issue and special pleas 2 and 3. Plaintiff then declined to take issue on the special pleas, and took issue on the plea of the general issue. Whereupon a jury came, but, as the judgment entry shows, the plaintiff offered no evidence in support of his complaint and verdict, of course, went for the defendant on the plea of the general issue, and judgment was entered accordingly. The plaintiff should have taken issue not only on the plea of the general issue, but also on the special pleas, and should have proved his complaint under the general issue, and thereby put the...