S. J. Petree & Co. v. Phillip Olim & Co., Inc.

• Decision Date: 30 June 1921
• Docket Number: 8 Div. 376
• Citation: 206 Ala. 333,89 So. 602
• Court: Alabama Supreme Court
• Parties: S.J. PETREE & CO. v. PHILLIP OLIM & CO., Inc.

89 So. 602

206 Ala. 333

S.J. PETREE & CO. v. PHILLIP OLIM & CO., Inc.

8 Div. 376

Supreme Court of Alabama

June 30, 1921

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

Assumpsit by Phillip Olim & Co., Incorporated, against S.J. Petree & Co. and the individuals composing the firm. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

William L. Chenault, of Russellville, for appellants.

W.H. Key, of Russellville, for appellee.

SOMERVILLE, J.

The fact that the defendant in an action at law has demanded a trial by jury does not relieve him of the obligation to plead, answer, or demur to the complaint within 30 days from the service of process as required by the Act of September 28, 1915 (Gen.Acts 1915, p. 825), amending section 5346 of the Code. After 30 days he is in default, and subject to judgment, although the time for the next jury session has not yet arrived.

The complaint in this case is on an itemized and verified account alleged to be on file. The appeal is on the record only, and there is nothing to contradict the allegations of the complaint. In such a case, a judgment on the account, with interest, without resort to a writ of inquiry, is expressly authorized by section 3971 of the Code, and so far as appears the judgment herein was properly rendered by default, and the amount properly ascertained by the court without the aid of a jury. If the conditions prescribed by the statute for such a judgment were not in fact existent, their absence should have been shown by a bill of exceptions.

Let the judgment be affirmed.

Affirmed.

ANDERSON, C.J., and McCLELLAN and THOMAS, JJ., concur.