Traweek v. Hagler

• Decision Date: 01 February 1917
• Docket Number: 6 Div. 394
• Citation: 199 Ala. 664,75 So. 152
• Parties: TRAWEEK v. HAGLER.
• Court: Alabama Supreme Court

75 So. 152

199 Ala. 664

TRAWEEK v. HAGLER.

6 Div. 394

Supreme Court of Alabama

February 1, 1917

Rehearing Denied May 17, 1917

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

Assumpsit by P.B. Traweek, individually, and as administrator, against Sallie A. Hagler. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6 Act 1911, p. 449. Affirmed.

The action is for money had and received by defendant to the use of plaintiff, which was paid by plaintiff to defendant by mistake of fact. Besides pleas of the general issue and a plea of set-off, special pleas were filed as follows:

(A) For further plea defendant says that the allegations of the complaint are untrue, but that for the purpose of this case, granting that they are true, plaintiff is estopped from claiming and recovering said amount because of the following facts: The said money so paid to defendant was the proceeds of real estate which defendant had sold to plaintiff's intestate, and upon which he held a valid purchase-money mortgage, and parts of which property were by her released to plaintiff by reason of the payment which is sought to be recovered back, and the amount paid was applied by defendant upon the said mortgage indebtedness.

(B) Defendant further pleads that plaintiff ought not to recover said money, for the reason that the same is the proceeds of sale of certain real estate, which defendant had sold to plaintiff's intestate on a credit, and had retained a purchase-money mortgage on said property, upon which mortgage default had been made, and the property sold under the power of said mortgage, and the said money so paid together with the amount for which the remainder of said property was sold, does not amount to as much as was due on said mortgage indebtedness; the said money, being the proceeds of defendant's own property, should in equity and good conscience be applied to plaintiff's debt to defendant for all this said land.

Demurrers to these pleas were overruled, which rulings are jointly assigned for error in a single assignment. The assignments of error include also a number of rulings on the evidence, the rendition of judgment for defendant by the court sitting without a jury, and the refusal of the court to grant a motion for new trial.

H.L Smith and Traweek & Dodson, all of Tuscaloosa, for appellant.

Verner & Rice and J.R. Bealle, all of Tuscaloosa, for appellee.

SOMERVILLE J.

The first assignment of error is that the trial court erred in overruling the demurrers to pleas 3, 4, A and B. If any one of these pleas was not subject to the grounds specified as to it, the assignment of error cannot be sustained. Plea 3--that defendant is not indebted to plaintiff in any sum whatever--though technically inapt in assumpsit, is in effect a plea of the general issue, and the only ground of demurrer thereto is that "it is no more than the general issue." There was manifestly no error in overruling such a demurrer, and it follows that the entire assignment of error must fail. Moreover, the grounds of demurrer assigned to the other pleas are but general in character, and do not meet the requirements of the statute (Code, § 5340) as to the specification of defects apparent in the pleas, if there be any.

By way of replication to defendant's plea of set-off, plaintiff pleaded that the claims therein mentioned had never been filed as claims against the estate of his intestate as required by Code, § 2589, and that more than 12 months had elapsed between the grant of letters and the beginning of this suit. As a rejoinder to this replication, defendant pleaded "that at the time said money was paid, which is here sought to be recovered back, the defendant's claims were not then barred by the statute of nonclaim." This was manifestly not a good rejoinder, because, as pointed out by the demurrer, it failed to show that defendant...