Alabama & Florida R. R. v. Watson, 42 Ala. 74

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42 Ala. 74 | Ala. | 1868

Lead Opinion

BYRD, J.

The bill of exceptions shows that “ the defendant demurred to the complaint, and by consent of parties, in open court, the demurrer to the complaint was *77to be deemed as duly filed and every ground of demurrer which should legally be set down or specified was to be deemed as duly set down and specified, and a joinder in demurrer was to be deemed as duly filed and that “ the court, upon full consideration of the argument thereon, overruled said demurrer, to which' ruling and decision of the court the defendants excepted.” The Code provides “ that no demurrer in pleading can be allowed, but to matter of substance which the party demurring specifies; and no objection can be taken or allowed which is not distinctly stated in the demurrer.” — Code, § 2253. The demurrer, which the appellant sought to interpose, does not conform to the requirements of the statute, and I am not aware of any authority to sustain the proposition that the agreement of counsel can render nugatory a statutory prohibition which was intended to control the action of the court.

Again, the record does not iniorrii us what were the points of objection raised in the argument, in the court below. And in the absence of any information on the subject, I must presume in favor of the ruling'of the court, that no valid ground of demurrer was specified in the argument; and if none were, we should not reverse the case, even if there had been a good one which might have been specified. None such has been specified in the argument of counsel in this court. The court below properly overruled the demurrer. — Helvenstein v. Higgason, 35 Ala. 259; Henderson v. Renfro, 31 Ala. 101 ; ib. 164 ; Cotten v. Bradley, ib. 508; Cotten v. Rutledge, 33 ib. 110; ib. 640 ; Burns v. Mayor, &c., 84 ib. 485 ; Robbins v. Mendenhall, 35 ib. 722.

II. The bill of exceptions further shows that “ the parties agreed that every matter and thing which could be legally pleaded in bar, should be deemed as duly pleaded, and that every matter and thing which could be legally replied, should be deemed as duly replied, and that every issue which could be legally joined as to the matters in bar, should be deemed as duly joined,” and upon this agreement the parties proceeded to try the cause, no pleas being filed to the complaint. I have mo doubt of the right of the parties to make such an agreement, and of the right of the court below to recognize suchran agreement, but the effect *78that the court should have given to it, I am not called on to express an opinion. The effect that this court will give it, is all that, I think, in the present condition of the records, we are called upon to decide. I am decidedly of the opinion that this agreement can, at most, be held as amounting to a plea of the general issue and joinder therein by the plaintiff in the court below. And upon this construction of the agreement I shall hereafter proceed to dispose of the questions raised in the bill of exceptions.

The record does not show that the court below was advised by counsel of any special matter in bar of the action, which was not available under the general issue, nor of any special matter which was only admissible under a replication or an issue thereon. I hold that neither the court below, nor this court, is bound to make up issues for the parties under such an agreement, nor to conceive of a state of pleadings under which evidence offered would or would not be admissible; and, a fortiori the court is not bound to do so, when the counsel do not themselves bring to the attention of the court the particular state of pleading under which the evidence is or is not relevant or admissible. General objections made in the courts below are not favored in this court, nor should such generality in pleading be favored. Parties may agree to submit causes in the courts of law upon the facts to the court, and the court may recognize the agreement as binding on the parties, and proceed and decide the pause, but this court has held that it will not review such a decision. If parties desire their causes reviewed they must proceed according to law and the rules of the court to try them, and not under agreements which depart from the provisions of law regulating the trial of causes. This court has reviewed causes tried on agreements which allowed the defendant to plead the general issue and other pleas in bar by name, in short by consent, and the following cases will show how they have been construed, and how far tolerated.— Gayle v. Randle, 4 Por. R. 232; Jackson, adm'r, v. Jackson, et al., 7 Ala. 791; Reid v. Nash, 23 ib. 733; Brooks v. McFarland, 20 ib. 483; Duncan v. Hargrove, 22 ib. 150; Anderson v. Nash, 24 ib. 279. This is as far as this *79court has gone, and I am not in favor of going any farther in that direction. So far as this court :has tolerated such a practice, I am willing to adhere to the adjudications, but not to go farther ; and prefer to enforce in analogous cases the rules laid down in the cases of Etheridge v. Doe, 18 Ala. 569; Barnes v. Mayor, dec., 19 ib. 707 ; Bolt v. McCoy, et al., 20 ib. 578; DeVended v. Doe, 27 ib. 156; Stein v. Jackson, 31 ib. 24.

In this case the counsel in this court, have not in their arguments suggested any special plea, issue or replication under which the evidence would or would not be admissible, and I shall not undertake the task of making up issues under which it might or might not be admissible, but will proceed to ascertain whether .any was admitted or rejected in the course of the trial which should not have been under the general issue. In support of the general views above expressed, I refer to the following authorities: Long v. Rogers, 19 Ala. 321; Van Eppes v. Smith, 21 ib. 317; Jones v. Graham, ib. 654; Murrah v. Br. Bk. Decatur, 20 ib. 392; Fulton Ins. Co. v. Tinsley & Co., 23 ib. 420; Russel v. Desplous, 25 Ala. 514; 31 ib. 164; Smith v. Gafford, 33 ib. 168; ib. 272.

III. The contract sued on is averred to be in writing. The Code provides that “ all written instruments, the foundation of the suit, purporting to be signed by the defendant, his partner, agent or, attorney in fact, must be received in evidence, without proof of the execution, unless the execution thereof is denied by plea, verified by affidavit.” No such plea is filed in this case, unless the agreement of the parties above noticed is equivalent to such a plea. I hold that it .is not, and that under such an agreement the plaintiff did not waive the affidavit required by law, and that the defendant could only insist on such pleas as could be plead without verification. — Ala. & Miss R. R. Co. v. Sanford & Reid, 36 Ala. 703; Ala. Coal M. Co. v. Brainard, 35 ib. 476, The court did not therefore err in admitting the contract “ without proof of the execution.”

We have been unable to detect any substantial variance between the contract offered in evidence and the one set *80out in the complaint, and the counsel for appellant have not pointed out any variance between them, substantial or otherwise. The other grounds, stated in the bill of exceptions, are equally untenable, and the court committed no error in permitting the contract offered in evidence to go to the jury.

IY. The objection taken to the competency of the appellee as a witness was properly overruled under the influence of the act approved February 14th, A. D. 1867. The language of the act is broad and comprehensive enough to embrace such a case as this, and this case is not reached by exceptions named in the first section of the act.- — Field v. N. Y. &c. R. R. Co., 29 Barb. 176; Johnson v. McIntosh, 31 Barb. 267; LaFarge v. Exch. & Ins. Co., 3 Bosw. 157; Mott v. N. Y., 2 Hilt. 358; ib. 440.

Y. The last exception taken in the court below, was taken to the admission as evidence of a statement made by Comer to the appellee. It seems to me that the evidence was clearly inadmissible, and I cannot see for what purpose it was offered by the appellee. It tended to prove a compliance on the part of the appellant with the terms of the contract, and, so far as I can see, nothing else. But as the bill of exceptions does not purport to set out all the evidence introduced on the trial, wé must reverse this case for the error in admitting the declaration of Comer against the objection of appellant, upon the authority of Abraham & Bro. v. Nunn, decided at the present term.

Concurrence Opinion

A. J. Walker, C. J.

I concur in the foregoing opinion, so far as the question of variance, of the competency of the plaintiff as a witness, and the admissibility of Comer’s declaration are concerned. Of course I concur in the result. In reference to the pleading, I express no opinion farther than to say, that the substitution of the agreements in this place for pleading was obnoxious to many objections, and it would be better to avoid a similar practice hereafter.

Reversed and remanded.

Judge, J., not sitting.