Holley v. Coffee

• Decision Date: 07 June 1899
• Citation: 26 So. 239,123 Ala. 406
• Parties: HOLLEY v. COFFEE.
• Court: Alabama Supreme Court

26 So. 239

123 Ala. 406

HOLLEY v. COFFEE.

Supreme Court of Alabama

June 7, 1899

Appeal from circuit court, Covington county; J. W. Foster, Judge.

Action by M. J. Coffee against C. H. Holley. Judgment for plaintiff. Defendant appeals. Affirmed.

This action was brought on May 19, 1897, by the appellee, M. J Coffee, against the appellant, C. H. Holley, and counted upon three promissory notes, given by the defendant to the plaintiff on April 30, 1881, and made payable 60 days, 4 months, and 6 months after date, respectively. The complaint after counting upon said notes, contained the following averments: "And plaintiff avers that each and all of said three notes last declared on were made and executed in the state of Texas, and were made payable and were payable in the state of Texas; that at the time said notes were made and at the time said notes became and were due and payable the defendant, C. H. Holley, was in the state of Texas, and at the time said notes were executed said C. H. Holley resided in the state of Texas; that after said notes matured and became and were payable, the defendant, on, to wit February ___, 1882, left the state of Texas, and has been absent from the state of Texas since February ___, 1882, and has been in and resided in the state of Florida since, to wit, February ___, 1882." There is a recital in the judgment entry that the defendant's demurrer to the complaint was overruled, but said demurrer does not appear in the transcript. The defendant filed four pleas. He was allowed to withdraw plea No. 2. The other pleas were as follows: (1) "The defendant, for answer to the complaint, saith that the notes declared upon in this action are each barred by the statute of limitations of six years." (3) "For further plea, this defendant saith that the notes declared upon in this action matured on the respective dates alleged in the complaint, to wit, in the year 1881, and this defendant avers that more than 15 years have elapsed since the maturity of each of said notes, and that the same are conclusively presumed by law to have been paid." (4) "For further plea, the defendant saith that the notes declared upon in this action have been paid, in this: that the said notes each matured in the year 1881, at divers dates, and that the payee of said notes, the plaintiff herein, made no demand on this defendant for the payment thereof for more than 12 years after their maturity as aforesaid." The plaintiff moved the court to strike the third and fourth pleas from the file, on the ground that said pleas were no answer to the complaint; that they raised an immaterial issue; and that they show on their faces that the demand sued on has not been paid. This motion was sustained. The plaintiff demurred to the defendant's first plea upon the following grounds: (1) Said plea is no answer to the complaint; (2) it shows that the notes declared on were not barred by the statute of limitations of six years, because the notes declared on in the complaint are shown therein to have been executed in the state of Texas, and that the obligation incurred thereby was to be performed in that state, and that the defendant moved to the state of Florida, and has been absent from the state of Alabama since the maturity of said notes; (3) said plea does not show that the defendant has been in the state of Alabama for a period of six years, so that he could be sued. The plaintiff moved to strike said plea No. 1 from the file upon the same ground. This demurrer and motion were each overruled. Thereupon the plaintiff filed the following replications to the defendant's plea No. 1: "(1) He joins issue on said plea; (2) that since said notes were executed the defendant has not been in the state of Alabama for a period aggregating six years; (3) that the three notes declared on in the original and amended complaint were executed by the defendant in the state of Texas, and were made payable and were to be paid in the state of Texas, and that since the execution of said notes the defendant has been absent from the state of Alabama for a period aggregating more than twelve years." The defendant then made a motion to strike said replications from the file, because the same were inconsistent and repugnant, in that the plaintiff undertakes to join issue on the plea that it professes to answer, and at the same time undertakes to set up by way of avoidance of said plea. This motion was overruled, and thereupon the defendant demurred to the second replication upon the following grounds: (1) Said replication fails to allege that the notes sued on were not executed in the state of Alabama; (2) it fails to aver, at the time of the execution of said note, whether the defendant was a resident or nonresident of the state of Alabama; (3) it fails to allege that the defendant was absent from the state during the period within which an action might have been brought against him on the note sued on; (4) it fails to show that the defendant came into the state after the alleged cause of action declared on had accrued; (5) it fails to show that the defendant has ever been a resident of the state of Alabama. To the third replication the defendant demurred upon the following grounds: (1) Said replication fails to set up any matter of confession or avoidance of said plea No. 1; (2) it fails to show that the defendant was absent from the state of Alabama during the period after the execution of said notes within which the suits might have been brought thereon; (3) it affirmatively appears that the notes sued on were executed out of the state of Alabama, and that the defendant was at the time a resident of the state of Texas; (4) it fails to show that the defendant came into the state of Alabama after the alleged cause of action declared on had accrued. Each of these demurrers to the second and third replications, respectively, were overruled, and issue was joined on the pleadings. The motions to strike the pleas and...