Bufford v. Chambers, 42 So. 597

Bufford v. Chambers

42 So. 597 | Ala. | 1906

DOWDELL,

J. — The complaint as originally filed contained three counts, and was subsequently amended. Theoamendment was made as follows: “Comes the plaintiff/and, after obtaining leave of the court, amends his complaint to read as follows” — setting forth what purports to be a new complaint' with a single count. It would seem from this that the amendment was intended as a .substitute for the original complaint. But, be this as it may, the defendants, on the day of the filing of the amended complaint, filed demurrers to the original com-' plaint, as Avell as the amended complaint. The plaintiff moved to strike the demurrers from the file on the ground that the same Avere not filed Avithin the time required by law, and also at the same time moved for a judgment by default against the defendants on the ground that no appearance was made by defendants Avithin 30 days after they had been served. The court overruled the motion. The motion to strike the demurrers Avas clearly Avanting in merit; the demurrers having been filed on the same day that the complaint Avas amended, and to Avhich the demurrers Avere interposed.

It is not,made to appear from the record when appearance was entered by the defendants, and, if the motion for a judgment for failure to enter appearance within the time required by law otherAvise had any merit, it Avas unsupported in this respect. The bill of exceptions recites that, on the case being called for trial, “all of the parties” announced ready for trial. It Avas after this, and after motion made to' strike the demurrers, that the motion for judgment for failure to appear Av,as made. Clearly the motion Avas Avithout merit and Avas properly OA^erruled.

*448The several counts of the complaint as o~ñgi.nally filed, as well as the amendment, were defective, and subject to the demurrer in the failure to state facts showiug in what the unlawful acts of the defendant Chambers consisted, besides being in other re~pects bad and open to other grounds of the demurrer. The averment that the defeiidant, as justice of the peace, unlawfully. or wrongfully issued the warrant of arrest, without more, is but the coiiclusion of the pleader and insufficient. The court committed no error in its ruling on the, demurrers. We find no error in the record, and the judgment will be affirmed. .

Affirmed.

T~oN~ C. J.. and A~DEusoN and MOCI~ELLAN. JJ.) CO:flCUr.