Gainer v. Pollock

• Decision Date: 01 November 1892
• Citation: 96 Ala. 554,11 So. 539
• Parties: GAINER ET AL. v. POLLOCK ET AL.
• Court: Alabama Supreme Court

11 So. 539

96 Ala. 554

GAINER ET AL. v. POLLOCK ET AL.

Supreme Court of Alabama

November 1, 1892

Appeal from circuit court, Geneva county; J. M. CARMICHAEL, Judge.

Action by W. H. Gainer & Co. against J. Pollock & Co. on an account. From a judgment for plaintiffs, defendants appeal. Reversed.

W. D. Roberts, for appellants.

M. E. Milligan, for appellees.

WALKER, J.

It is only by force of the statute that in suits upon accounts an ex parte itemized statement of the account, not proved in one of the ordinary modes of proof, but only verified by affidavit, is made legal evidence, under certain conditions fixed by the statute. The statute prescribes as a condition to the competency of such evidence that the plaintiff, at the time of bringing his suit, indorse on the summons and complaint or other original process the fact that the account is verified by affidavit. Code, § 2773. No such indorsement was made in the present case. The objection on this ground to the admission in evidence of the account offered by the plaintiff should have been sustained. Reversed and remanded.