Lunsford v. Butler

• Decision Date: 05 April 1894
• Citation: 102 Ala. 403,15 So. 239
• Parties: LUNSFORD v. BUTLER.
• Court: Alabama Supreme Court

15 So. 239

102 Ala. 403

LUNSFORD v. BUTLER.

Supreme Court of Alabama

April 5, 1894

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Marcena Butler, administratrix of the estate of Daniel Butler, against George Lunsford on an account. From a judgment for plaintiff, defendant appealed. Affirmed.

The first count of the complaint was in the following language "The plaintiff, as administratrix as aforesaid, claims of the defendant ninety-one & 62/100 dollars, due from defendant by account on, to wit, the _____ day of October, A. D. 1890, which account is verified by affidavit." The remaining counts were the common counts in assumpsit. Upon the trial of the cause, as is shown by the bill of exceptions, the plaintiff offered in evidence the verified account sued on. The defendant objected to the said account as evidence, on the ground that there was no indorsement on the summons and complaint of the fact that the account was verified by affidavit, as required by section 2773 of the Code. The bill of exceptions recites: "The court, upon inspection of the complaint, said that in the first count of the complaint it was mentioned that the suit was on a verified account, and that as to that count of the complaint the objection was overruled, but was sustained as to the other counts, and the said verified account was admitted as evidence of the correctness of the account. To this ruling of the court the defendant excepted." The plaintiff, being examined as a witness in her own behalf, testified that she was the widow and administratrix of Daniel Butler, and that she had made the affidavit to the account sued on; that she knew her husband had done the work charged in the account and that the account was contained in a memorandum book kept by her husband, and had been copied from that book; that she had not seen her husband make the entries in this book, but knew they were in his handwriting, but that she did not know the value of the items charged. The plaintiff here introduced the memorandum book, and particularly the page on which were the entries and items of the account sued on. The defendant objected to this book being introduced in evidence, and to the particular page referred to, because the book was mutilated, in that several leaves were torn out, as the book showed. The defendant exhibited the book to show this; but there was no proof tending to show that said book was torn after the entries were made. Upon this subject, Martin Butler, a son of Daniel Butler, testified that his father made the items in the book at the time of the...