Lagerfelt v. McKie

• Decision Date: 04 December 1893
• Citation: 14 So. 281,100 Ala. 430
• Parties: LAGERFELT v. MCKIE.
• Court: Alabama Supreme Court

14 So. 281

100 Ala. 430

LAGERFELT v. MCKIE.

Supreme Court of Alabama

December 4, 1893

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Lura McKie against C. O. Lagerfelt on notes given by defendant for the rent of a certain house, the property of plaintiff. There was judgment for plaintiff, and defendant appeals. Affirmed.

The cause was originally instituted in a justice of the peace court, and was commenced by an attachment for rent. Upon the appeal being taken to the city court, the plaintiff filed a complaint, counting upon three promissory notes executed by the defendant. Plaintiff was allowed, against the objection and exception of the defendant, to amend the complaint, by inserting, after the recital of the notes in the complaint the following words: "Which notes were given for installments of rent for a dwelling house belonging to plaintiff." The defendant demurred to the amended complaint, on the ground that the complaint counted upon several promissory notes, while the original cause of action was for the attachment for rent, and the present complaint sets out an entirely new cause of action. This demurrer was overruled, and the defendant excepted. The defendant then interposed two special pleas, in the first of which he averred that the relation of landlord and tenant never existed between him and the plaintiff; and in the other he set up the fact that at the time of the assigning of the lease for rent, and the execution of the notes, the plaintiff was a married woman, and that she did not have the written consent of her husband for her to contract with the defendant for the rent of said premises, and that the relation of landlord and tenant never existed between the plaintiff and the defendant. To each of these pleas plaintiff demurred, on the ground that they set up no defense to the action of the court sustaining the demurrer. To each of these rulings of the court the defendant duly excepted. The plaintiff was allowed by the court, against the objection and exception of the defendant, to amend her complaint by adding a second count, which set out at greater length the execution of the three promissory notes sued on, and that they were given in consideration for the rent of the dwelling house, which was the property of the plaintiff. The defendant then offered to plead in abatement that the cause of action, as shown by the complaint filed in said court, was a departure from the original cause of action before the justice of the peace. This plea is abatement was disallowed by the court, and to this ruling the defendant duly excepted. Upon the trial of the cause, the plaintiff introduced the three promissory notes sued upon, which were executed by C. O. Lagerfelt, the defendant, and made payable to J. D. McKie, who was shown to be the husband of Mrs. Lura McKie. Each of these notes was indorsed in blank by J. D. McKie. To the introduction of each of these notes in evidence the defendant objected, on the grounds that they did not purport to be given to the plaintiff, nor to have been assigned to the plaintiff, and because they did not purport to be given for rent. The court overruled this objection, and the defendant duly excepted. After proof of the execution of the lease executed by J. D McKie, as agent for Mrs. Lura McKie, the plaintiff, and C. O Lagerfelt, by which C. O. Lagerfelt agreed to rent the premises in question, the plaintiff offered to introduce the said lease in evidence. The defendant objected to this because the lease did not purport to have...