Slaughter v. Martin

• Decision Date: 13 November 1913
• Citation: 9 Ala.App. 285,63 So. 689
• Parties: SLAUGHTER v. MARTIN.
• Court: Alabama Court of Appeals

63 So. 689

9 Ala.App. 285

SLAUGHTER v. MARTIN.

Court of Appeals of Alabama

November 13, 1913

Appeal from Circuit Court, Baldwin County; A.E. Gamble, Judge.

Assumpsit by A.D. Slaughter against George Martin. From judgment for defendant, plaintiff appeals. Reversed and remanded.

John E. Mitchell and Carl McMahon, both of Mobile, for appellant.

Williams S. Anderson and Frank S. Stone, both of Bay Minnette, for appellee.

THOMAS J.

The appellant, plaintiff below, instituted this suit in assumpsit against appellee, defendant below, in the justice of the peace court, which resulted there in a judgment in favor of the former. The latter appealed the case to the circuit court. Between the time of the taking of that appeal, which was in January, 1911, and the time of its trial in the circuit court, which was in November, 1911 (it is claimed by the defendant), the plaintiff converted, or aided in converting to his own use, or that of another, certain personal property of the defendant; and the latter, under a plea of set-off, in the statutory form, filed in the circuit court on the trial there of the appeal mentioned, was allowed to and did prove, as a set-off to plaintiff's action, the damages resulting to him, the defendant, from this conversion of his property by the plaintiff, and recovered of the plaintiff a judgment for $71 as the excess of such damages over the demand of the plaintiff.

One of the questions presented on this appeal, the disposition of which here is such as to render unnecessary the consideration of others is whether or not, on a trial in the circuit court of a case appealed thereto from the justice of the peace court, the defendant can sustain a plea of set-off, filed in the circuit court, by evidence of a claim or demand in his favor against the plaintiff which was nonexistent at the time of the commencement of plaintiff's suit in the justice court, and which arose only after judgment there for the plaintiff, and after the defendant had appealed the case to the circuit court, and while it was still pending and undetermined in the latter court.

The right in a defendant to plead set-off, as well as the right on his part to recover judgment upon such plea when the demand proved as a set-off exceeds that of the plaintiff's claim, is purely of statutory origin--finding no support whatever at the common law. Drennen v Gilmore, 132 Ala. 246, 31 So. 90, 90 Am.St.Rep. 902. Section 5858 of the Code, which confers the right to plead set-off, at the same time limits such right, so far as regards the time of the accrual of the debt or demand which it allows to be set off, to such debts or demands as were, in the language of the statute, "subsisting between the parties at the commencement of the suit." Lawton v. Rickett, 104 Ala. 430, 16 So. 59; St. Louis Co. v. McPeters, 124 Ala. 451, 27 So. 518; Poull & Co. v. Foy-Hays Co., 159 Ala. 453, 48 So. 785.

This suit, as said, was commenced in the justice of the peace court, at the time of which commencement, as seen, the demand, which defendant set off against the plaintiff on the trial of the appeal in the circuit court, was not "subsisting between the parties." Clearly, then under the statute cited, the defendant was not entitled to the set-off claimed, but his remedy for his damages was by an original suit against the plaintiff, unless that statute (Code, § 5858) is modified in particulars applicable to this case, which defendant insists is true, by some other statute. As accomplishing this modification, so far as concerns cases appealed from the justice to the circuit court, he urges section 4720 of the Code, which, among other things provides: "Cases brought by appeal or certiorari from judgments of justices of the peace *** must be tried de novo and according to equity and justice," etc.

There is nothing, in our opinion, either in the terms or in the spirit of this statute, or in any construction given it by either of our courts of final review, that would warrant a conclusion that thereby the Legislature intended to establish, on the trial of a case appealed from a justice court to a circuit or city court, a different rule of set-off from that obtaining in the same case while it was pending for trial in the justice court, or in a similar case that had been commenced originally in such circuit or city court. The appealed case must be tried, it is quite true, in the words of the statute, "de novo"--that is, anew, over again, and that without any presumptions in favor of the judgment of the justice, which, by the appeal, ipso facto, is set aside and annulled for a new trial to be had--not in the justice court, of course, but in the circuit or city court to which it may be appealed, where the trial is had, so far as regards the issues that can arise between the parties, just as a new trial would be had in the latter court when a previous verdict and judgment in a case originating in that court had been set aside by the court itself on motion for a new trial, or where such judgment had, on appeal, been reversed by a higher court and the case sent back for another trial to the court in which it originated. Abraham v. Alford, 64 Ala. 281; Littleton v. Clayton, 77 Ala. 571; McConnell v. Worns, 102 Ala. 587, 14 So. 849. Certainly, in neither of the instances named could a plea of set-off, filed on the new trial had, be sustained by proof of a debt or demand in defendant's favor which arose only after the commencement of the suit by the plaintiff. Code, § 5858.

Section 4720 of the Code cited as said, by defendant--it is also true, as contended by him--declares, not only that the appealed case must be tried "de novo," but...