Meyer v. Bloch

• Decision Date: 17 December 1903
• Citation: 35 So. 705,139 Ala. 174
• Parties: MEYER v. BLOCH.
• Court: Alabama Supreme Court

35 So. 705

139 Ala. 174

MEYER v. BLOCH.

Supreme Court of Alabama

December 17, 1903

Appeal from City Court of Selma; John W. Mabry, Judge.

Statutory action of detinue by I. Bloch against J. D. Meyer. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The plaintiff claimed under a mortgage alleged to have been executed by him to the defendant. The defendant pleaded the general issue, and by special plea sought to set up that the property mentioned in the complaint was held by a third person. This special plea was stricken on motion of the plaintiff. Thereupon the defendant filed a special plea and affidavit in which he averred that he did not claim title to the property sued for, but that one Robt. Smith, who was not a party to the suit, claimed the property sued for, and prayed that said Smith be required to come in and defend the suit. The plaintiff moved to strike this affidavit for interpleader from the file, assigning several grounds therefor. The defendant demurred to the plaintiff's motion to strike the affidavit for interpleader, and this demurrer was overruled, and the court then granted the motion of the plaintiff to strike the affidavit for interpleader from the file. Among other special pleas filed by the defendant was the following: "(7) And for further answer to the complaint, defendant says that plaintiff sues in this case to recover property conveyed to him by mortgage made to him by defendant, and that there was a failure of consideration for said mortgage and the debt secured thereby." To this seventh plea the plaintiff demurred upon the following ground: "(1) It fails to aver any facts showing failure of consideration." This demurrer was sustained. The other rulings of the court which are assigned as error were based upon the rulings of the court upon motions made as to the special pleadings, but there is no bill of exceptions certified to this court.

Craig &amp Craig, for appellant.

Henry F. Reese, for appellee.

TYSON J.

Of the five assignments of error, only two are insisted upon. Doubtless the other three are not urged because the matters to which they relate are not presented for review by bill of exceptions. And for that matter, one of those insisted on which complains of the overruling of a demurrer to the motion interposed by plaintiff to strike defendant's affidavit for an interpleader, is in the same predicament. Jones v City of Anniston (Ala.) 35 So....