138 Ala. 157 | Ala. | 1902
This case originated, in the justice court, and was commenced by summons and complaint. A judgment was there rendered against the defendant from which an appeal was taken to the city court of Bessemer. Under the statute, (section 2667 of the Code), in suits commenced before a justice of'the peace, the filing of a complaint is not required; it is sufficient to indorse the cause of action on the summons. But this does not prevent the filing of a complaint, if the plaintiff sees proper to do so. In this causé a complaint was filed, which stated the cause of action to be. on an account. This was quite as sufficient as if it had been indorsed on the summons. Afterwards an amended complaint was filed, claiming for the price of a mare sold to the defendant on the 15th of April, 1901. On this complaint judgment 'was rendered by the justice in favor of plaintiff'. On appeal to the city court, the amended complaint was there refiled and was demurred to by the defendant, which demurrer the court, properly overruled. Some of the grounds of the demurrer relate to the proceedings in the justice court. On appeal the case must be tried de novo and according to equity and justice, without regard to any defect in the summons, or other process, or proceedings before the justice. — Code, § 488. These, as also other grounds of demurrer, were without merit.
. The defendant filed four pleas, to the first of which demurrers were sustained. The first plea sets up a warranty in the sale of the mare and a-breach of the warranty, without averring any damages to the defendant from such breach. If the defendant desired to keep the mare and rely upon the warranty, and recoup for the damages sustained by its breach, and this he had a right to do, then he should have averred the amount of the damages he claimed by way of recoupment. The plea in this respect was defective, and there was no error in sustaining the demurrer. The second and third pleas set up false representations made in the sale of the mare, and sought to recoup for damages al
The fourth plea did not aver that the mare had been sold by the plaintiff and purchased by the defendant for any particular purpose, and consequently there was no error in sustaining the motion of the plaintiff to strike from said plea the wards, “the purpose for Avhich she Avas bought.” The plea as it remained after these AA'ords Avere stricken out contained the averment, “that said mare sold by the plaintiff to the defendant Avas utterly Avorthless,” and issue Avas taken on this plea. One Pilcher testifying at a Avitness for the defendant Avas asked the folloAving question: “State Avliether or not said mare Avas utterly Avorthless for the purpose for Avhich she was bought,” and to Avhich an objection interposed by the plaintiff Avas sustained by the court. This ruling of the court Avas free from error, since there Avas no averment in the plea of any purpose for Avhicli the mare was bought. There Avas no plea setting up any warranty of soundness of the animal, and consequently the question to the Avitness, Warner Gardner, called for irrelevant eAd deuce, and the objection to it Avas properly sustained.
We find no error in the record, and the judgment Avill be affirmed.
