McCord v. Harrison & Stringer

• Decision Date: 13 April 1922
• Docket Number: 7 Div. 282.
• Citation: 93 So. 428,207 Ala. 480
• Parties: MCCORD v. HARRISON & STRINGER.
• Court: Alabama Supreme Court

93 So. 428

207 Ala. 480

MCCORD v. HARRISON & STRINGER.

7 Div. 282.

Supreme Court of Alabama

April 13, 1922

Rehearing Denied May 11, 1922.

Appeal from Circuit Court, Talladega County; A. P. Agee, Judge.

Action by Harrison & Stringer against Z. D. McCord, in assumpsit. From a judgment nil dicit, and denial of motion to set the same aside, defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. Affirmed.

James W. Strother, of Dadeville, for appellant.

Harrison & Stringer, of Talladega, pro se.

SOMERVILLE J.

It is well settled by the decisions of this court that, when a defendant pleads an affirmative plea, as to which he has the burden of proof, and fails to appear and sustain it, and the judgment entry recites that the defendant "says nothing further in bar or preclusion of plaintiff's right to recover," judgment may be rendered as though no plea were on file. McCollom v. Hogan, 1 Ala. 515; Dougherty v. Colquitt, 2 Ala. 337; McCoy v Harrell, 40 Ala. 232; Home Protection, etc., v Caldwell, 85 Ala. 607, 5 So. 338; Schwarz v Oppenheimer, 90 Ala. 462, 8 So. 36; Hutchison v. Powell, 92 Ala. 619, 622, 9 So. 170; Brandon v. Leeds State Bank, 186 Ala. 519, 65 So. 341; Elyton Land Co. v. Morgan, 88 Ala. 434, 7 So. 249. In the instant case, the court heard testimony adduced by plaintiffs, and on that testimony adjudged that they were entitled to recover.

Under the recitals of the judgment entry-in the absence, at least, of a bill of exceptions showing something to the contrary-it must be conclusively presumed that the venue plea was waived by the defendant; and, further, that, even if it were not waived, there was no evidence to sustain it. McCollom v. Hogan, 1 Ala. 515; Hutchison v. Powell, 92 Ala. 619, 622, 9 So. 170; and other cases, supra. On the record before us, we are bound to hold that the judgment in question was free from error.

We do not overlook the contention of appellant that count A of the complaint, added by amendment, showed by express allegation that defendant was a resident of Coosa county, and, that therefore, the complaint in effect confessed the venue plea on file, and relieved defendant of the burden of proving it. This contention, however, is manifestly unsound, for the reason that each count of the complaint is separate and complete, and admissions made in one count are not applicable to other counts, and cannot be visited upon them. Hence, as to counts 1 and 2, defendant had still the burden of allegation and proof with respect to the matter of venue, exactly as though count A had never been filed. Since venue may be waived by a failure to plead the objection, a venue plea may, like any other plea, be waived by a failure to appear and insist upon it when the case is called for trial.

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