Hill v. Hyde

Citation121 So. 510,219 Ala. 155
Decision Date28 March 1929
Docket Number8 Div. 81.
PartiesHILL v. HYDE ET AL.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action is assumpsit by W. T. Hill against Isaac Balus Hyde and the Fidelity & Deposit Company of Maryland. Judgment for defendants, and plaintiff appeals. Affirmed.

Street Bradford & Street, of Guntersville, for appellant.

J. A Lusk, for Guntersville, for appellees.

BROWN J.

The complaint consists of a single count declaring "for the breach of the condition of a bond made by the defendant Isaac Balus Hyde and the Fidelity & Deposit Company of Maryland as surety, on the 13th day of November, 1926, payable to the plaintiff in the sum of ten thousand dollars, with the condition," etc., and is in assumpsit. The general issue in an action of assumpsit is: "An averment that the allegations of the complaint are untrue," and the plea of "not guilty" is not an appropriate plea in such action. Behrman v. Newton, 103 Ala. 529, 15 So. 838; Montgomery Furniture Co. v. Hardaway et al., 104 Ala. 100, 16 So. 29; Espalla v. Richard, 94 Ala 159, 10 So. 137; Pennsylvania Casualty Co. v Mitchell, 157 Ala. 589, 48 So. 78.

Where, as here, the suit is on a written instrument alleged to have been executed by the defendants to the plaintiff, the execution of the paper is not a fact which the plaintiff was required to prove in order to recover, in the absence of a special plea of non est factum, and the general issue imposed no such burden on the plaintiff. Louisville & Nashville R. Co. v. Trammell, 93 Ala. 350, 9 So. 870; Mayor and Council of City of Decatur v. White, 109 Ala. 389, 19 So. 428; Code of 1923, § 9470.

While the plea of not guilty was irrelevant, not being an appropriate plea in an action of assumpsit, it was in the form prescribed by the Code, and as a plea of not guilty was not defective in substance, and the fact that it was irrelevant did not render it subject to demurrer. Code, §§ 9479, 9532, form 37.

In such case motion to strike is the appropriate method of ridding the record of such plea. Code of 1923, § 9458; Cunyus v. Guenther, 96 Ala. 564, 11 So. 649; Brooks v. Continental Ins. Co., 125 Ala. 615, 29 So. 13.

It clearly appears that the court treated the plea of not guilty as the general issue, and as such it imposed the burden on the plaintiff of proving the existence of the bond sued on and the alleged breach, but not its execution. This proof was essential to plaintiff's right to recover, and, inasmuch as the bond was not offered in evidence, any error in the rulings of the court on the special pleas or on objections to the evidence were clearly without injury. Cross v. Esslinger, 133 Ala. 409, 32 So. 10; Lehman Bros. v. McQueen, 65 Ala. 570; Douglass v. Eason, 36 Ala. 687.

There is nothing in the pleadings or proof going to show that the bond sued on was...

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15 cases
  • Almon v. Commission of Ed. of Cullman County, 6 Div. 25
    • United States
    • Supreme Court of Alabama
    • January 17, 1957
    ...in the courts of this state, nor is a plea to the effect that defendants are not indebted to plaintiff the appropriate plea. Hill v. Hyde, 219 Ala. 155, 121 So. 510; Traweek v. Hagler, 199 Ala. 664, 75 So. 152. However, such pleas do present a substantial issue and must be attacked by a pro......
  • Ramage, Parks & Co. v. Folmar
    • United States
    • Supreme Court of Alabama
    • March 28, 1929
  • National Life & Accident Ins. Co. v. Bridgeforth
    • United States
    • Supreme Court of Alabama
    • October 17, 1929
    ...... burden of adducing evidence, prima facie showing the. execution of the policy contract. Hill v. Hyde et al. (Ala. Sup.) 121 So. 510; Cooper v. American Central. Co., 139 Mo.App. 570, 123 S.W. 497; Royal Exchange. Assurance Co. v. Almon, ......
  • Jones v. Buckelew
    • United States
    • Supreme Court of Alabama
    • January 31, 1946
    ...our cases. Shell v. Pittman, 229 Ala. 380, 157 So. 205 (limiting Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794); Hill v. Hyde, 219 Ala. 155, 121 So. 510; Holland Fidelity & Deposit Co., 225 Ala. 669, 145 So. 131. The bond of the deputy was made under the Act approved September 1......
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