John E. Ballenger Const. Co. v. Joe F. Walters Const. Co.

• Decision Date: 16 June 1938
• Docket Number: 4 Div. 31.
• Parties: JOHN E. BALLENGER CONST. CO. v. JOE F. WALTERS CONST. CO.
• Court: Alabama Supreme Court

184 So. 275

236 Ala. 548

JOHN E. BALLENGER CONST. CO. v. JOE F. WALTERS CONST. CO.

4 Div. 31.

Supreme Court of Alabama

June 16, 1938

Rehearing Denied Oct. 6, 1938.

Certiorari to Court of Appeals.

Petition of Joe F. Walters Construction Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of John E. Ballenger Construction Co. v. Joe F. Walters Construction Co., 184 So. 270.

Writ awarded, and judgment of Court of Appeals reversed and annulled, with direction.

See also, John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., Ala.Sup., 184 So. 273.

ANDERSON C.J., and BOULDIN and BROWN, JJ., dissenting.

Walters & Walters, of Troy, for petitioner.

Geo. T Garrett and Ball & Ball, all of Montgomery, opposed.

FOSTER Justice.

This is a certiorari to review the opinion of the Court of Appeals rendered on appeal from the circuit court in an action on a statutory road construction bond controlled by the Act approved August 23, 1927,--Acts 1927, page 348,--obligated to pay for all labor, material, feed-stuffs and supplies furnished in the performance of the work.

The Act requires that a suit on such bond shall be commenced, if at all, within sixty days after the complete performance of said contract and final settlement thereof. Gen.Acts 1927, p. 356 § 28. The time in which suit must be brought is not a statute of limitation, but is of the essence of the action, and the complaint must show that it is begun within that time. Consolidated Ind. & Ins. Co. v. Texas Co., 224 Ala. 349, 140 So. 566; U.S. F. & G. Co. v. Yeilding Bros. Co., Dept. Stores, 225 Ala. 307, 143 So. 176; Consolidated Ind. & Ins. Co. v. Southern G-F Co., 226 Ala. 214, 146 So. 383.

The opinion of the Court of Appeals now under review asserts that there is an entire absence of proof that this suit was begun within that period of time, and therefore properly holds that a judgment for plaintiff should not have been rendered.

We should also note that the complaint does not make such an allegation by express or implied averment. This defect was pointed out by ground 8 of the demurrer which was also addressed to the amended complaint, and was overruled. But this ruling is not assigned as error, and is not under review. But it is that to which the Court of Appeals was probably referring when it expressed doubt as to the sufficiency of count 1. There may be some reason which has not occurred to us why this demurrer should not have been sustained, but a reversal for that ruling is not proper, since it is not assigned as error.

When a complaint states a cause of action, but omits some matter which should have been stated pursuant to good pleading, and a demurrer is improperly overruled, plaintiff is entitled to a judgment notwithstanding such omitted averment, if his cause of action is proven, and sometimes such proof will cure the defect of pleading. Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665. And defendant's method of review is by assigning as error the ruling on demurrer, not the rendition of judgment for plaintiff, nor a request for the affirmative charge.

But if the complaint fails to state a cause of action, as distinguished from a defect in pleading one, it will not support a judgment, and defendant may at any time, before or after judgment, or on appeal, show that such is the situation and cause the judgment, if then rendered, to be set aside or reversed. But not so if it states a cause of action, Section 7858, Code; National Surety Co. v. First National Bank, 225 Ala. 108, 142 So. 414; Alabama Power Co. v. Curry, 228 Ala. 444, 153 So. 634; Woodward Iron Co. v. Burges, 219 Ala. 136, 121 So. 399; 49 Corpus Juris 820, section 1216,--unless a demurrer was improperly overruled, and that ruling is assigned as error.

Whether the matter omitted in this case is of such an essential feature as that without it a judgment will not be supported, and whether its omission may be supplied by proof, so as to entitle plaintiff to a judgment, subject to the right of defendant to complain that its demurrer was improperly overruled, we need not here decide, because the Court of Appeals has declared that this proof was not made. If it was not alleged nor proven, and is of the essence of the cause of action, a judgment for plaintiff should be reversed, though the ruling on demurrer is not assigned. But whether one should be rendered for defendant and thereby foreclose further proceedings by plaintiff depends upon matters which may not be the same in all cases.

This case was tried by the judge without a jury. When so on appeal the court of review may upon reversal remand the cause or render a final judgment. Sections 6149, 8599, 9498, 9502, Code.

When the defect is as to a matter which may probably be supplied by averment and proof, and inadvertently or erroneously omitted, it is customary to remand to enable the allegation and proof to be made. Alger-Sullivan Lumber Co. v. Union Trust Co., 218 Ala. 448, 118 So. 760 (19); Elledge v. Hotchkiss, 222 Ala. 129, 130 So. 893; Childress v. Harrison, 47 Ala. 556.

In the case of Consolidated Ind. & Ins. Co. v. Texas Co., supra, there was a similar situation, and this Court reversed and rendered a judgment for defendant. Upon a reference to the original record in that case, we find that plaintiff was claiming certain facts as a waiver of that requirement, which were alleged in the complaint in lieu of the necessary averment. We also find that the agreed statement of facts showed that the suit was not filed in the required time. So that a remand of the cause would have served no useful purpose.

While in the instant case the opinion states that no such proof was made, it does not say that the proof showed that it was not filed in the time required by statute.

We do not think that by refusing to assign the ruling on demurrer as an error, which on reversal would naturally remand ...