Clark v. Jones

41 Ala. 349 | Ala. | 1867

PER CURIAM.

-We think the authorities establish 'the proposition, that a matter alleged in a bill can only be regarded as admitted by the failure of the defendant to answer, when it can either be presumed to be, or is alleged to be, within the defendant’s knowledge.—Thorington v. Carson, 1 Porter, 257; Bank of Mobile v. P. & M. Bank of Mobile, 8 Ala. 772; 3 Greenl. on Ev. § 276; Cowan v. Price, 1 Bibb, 173 ; Moore v. Lockett, 2 Bibb, 67 ; Pearson v. Meaux, 3 A. K. Marsh. 4; Moseley v. Garrett, 1 J. J. Marsh. 212, 215; Mitchell v. Maupin, 3 Mon. 185 ; Kennedy v. Meredith, 3 Bibb, 465; Tate v. Conner, 1 Dev. Eq. 224; Lunn v. Johnson, 3 Ired. Eq. 70; Cropper v. Burtons, 5 Leigh, 426; Coleman v. Lynes, 4 Rand. 454; Kirkman v. Vanlier, 7 Ala. 217. So, also, it is settled, that an evasive answer is not an admission.—White v. Wiggins, 32 Ala. 424; Savage v. Benham, 17 Ala. 119.

The defendant Clark admits the debts and judgments, as alleged; but his answer is silent in reference to the allegation of the issue and return of executions. We think these facts are, so far as all the executions are concerned, presumed to be within the knowledge of the defendant Clark, and therefore, prima facie, within his knowledge. We cite, in support of our position, the following authorities : Kirkman v. Vanlier, supra; Grady v. Robinson, 28 Ala. 289; Smilie v. Siler, 35 Ala. 94.

The issue and return of executions were matters of necessary evidence, only as against the defendant Clark. It was a matter in which the other defendant (Scruggs) was not at all interested. Those facts were, therefore, sufficiently proved, by the implied admission of the defendant Clark’s answer.—Hartley v. Bloodgood, 16 Ala. 233. By the direct and implied admission of Clark’s answer, the judgments, executions, and returns upon them, are established ; and this being the only point on which the decree of the court below is attacked, it must be affirmed.

Affirmed.