Street v. Browning

Decision Date16 December 1920
Docket Number7 Div. 73
Citation87 So. 527,205 Ala. 110
PartiesSTREET et al. v. BROWNING.
CourtAlabama Supreme Court

Appeal from Circuit Court, Clay County; Hugh D. Merrill, Judge.

Action by J.W. Browning against J.C. Street, and others, for damages for breach of the condition of an attachment bond made by the defendant as a condition to the issuance and levy of the writ against J.W. Browning. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6 Acts 1911, p. 449. Reversed and remanded.

Riddle & Riddle, of Talladega, for appellants.

McKay &amp Crumpton, of Ashland, for appellee.

SOMERVILLE J.

Although a defendant in a civil suit at law has a right to plead to the merits at any time before a default is entered against him (Craig & Co. v. Pierson Lumber Co., 179 Ala. 535, 60 So. 838), a demurrer to the complaint is not a plea to the merits (Black v. Smith Lumber Co., 179 Ala. 397, 60 So. 154); and the filing of a demurrer after the time prescribed by law is a privilege to be accorded or denied within the sound discretion of the trial judge, a discretion not revisable on appeal.

The summons in this case was served on the defendants on October 20, 1917, requiring him to the plead or demur to the complaint within 30 days, as prescribed by the act of September 28, 1915 (Gen.Acts 1915, p. 825), which has superseded section 5346 and section 5347 of the Code; and the demurrer to the complaint was not filed until December 31, 1917. Hence the trial court cannot be put in error for striking the demurrer from the file on motion. This rule is impliedly recognized in Bufford v. Chambers, 148 Ala. 442, 42 So. 597.

Conceding, without deciding, that count 1 of the complaint does not state a cause of action, other counts are clearly sufficient in that respect, and are not even subject to demurrer (McLane v. Tighe, 89 Ala. 411, 8 So. 70); so that defendant has not in fact been prejudiced by the striking of his demurrer.

A witness may testify to a party's good or bad credit as a collective fact, if it appears that he is qualified to do so by his knowledge of the subject. Pollock v. Gantt, 69 Ala. 373, 378, 44 Am.Rep. 519. And when a party testifies to his own credit, as he may undoubtedly do, a proper predicate should be first laid by showing his knowledge thereof.

The objections in this case were not addressed to the competency of plaintiff as a witness, but only to the illegality of his testimony, and were therefore overruled without error.

It is fairly inferable from plaintiff's testimony that he paid out $50 to lawyers for the defense of the attachment suit, and it appears that that was a reasonable sum for the services rendered in that behalf. That item of damage was specially claimed in count 3, and was therefore recoverable.

One of the conditions in the bond sued on was that the plaintiff in attachment should prosecute his suit to effect. The failure to do so was therefore a breach, and prima facie at least imported the absence of a just cause of action. Savage v Gunter, 32 Ala. 467, 469; McLane v. Tighe, 89 Ala. 411, 8 So. 70. The judgment entry in the attachment suit shows a verdict and judgment for the defendant in attachment on the merits of the claim sought to be enforced This established the...

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16 cases
  • Knowles v. Blue
    • United States
    • Alabama Supreme Court
    • January 18, 1923
    ... ... Gen. Acts 1915, p. 825 (1). For applications of the last ... statute see Robinson v. Newton Gro. Co., 200 Ala ... 528, 76 So. 854; Street v. Browning, 205 Ala. 110, ... 87 So. 527; S. J. Petree & Co. v. Phillip Olim & ... Co., 206 Ala. 333, 89 So. 602; Carothers v ... Callahan, 207 ... ...
  • American Sur. Co. of N. Y. v. Hooker
    • United States
    • Alabama Court of Appeals
    • March 6, 1951
    ...Phoenix City v. Taylor, 196 Ala. 665, 72 So. 264; Sloss-Sheffield Steel & Iron Co. v. Underwood, 204 Ala. 286, 85 So. 441; Street v. Browning, 205 Ala. 110, 87 So. 527; Somerall v. Citizens' Bank, 211 Ala. 630, 101 So. 429; Meador-Pasley Co. v. Owens, 222 Ala. 392, 133 So. 35; Pollard v. Ro......
  • Liverpool & London & Globe Ins. Co. v. Lowe
    • United States
    • Alabama Supreme Court
    • June 8, 1922
    ... ... complaint, while not amounting ... [93 So. 768.] ... to a plea to the merits (Street v. Browning, 205 ... Ala. 110, 87 So. 527), was a general appearance that would ... authorize the calling of defendant and counsel at the trial, ... ...
  • Du Pree v. Hart
    • United States
    • Alabama Supreme Court
    • May 14, 1942
    ... ... demurrer. The privilege of filing a demurrer was then ... discretionary with the court, though no default had been ... entered. Street v. Browning, 205 Ala. 110, 87 So ... On ... August 30, 1940, the court executed the writ of inquiry, ... without a jury, and ... ...
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