137 Ala. 175 | Ala. | 1902
This is an action in assumpsit. .'The complaint contains only common counts, — 1st, on open
As shown by the bill of exceptions, the court on motion of the 'plaintiffs struck from the files amended special pleas 2, 3; 4, and 5, to which ruling of the court, the defendant duly excepted. Unless.it can be said of these pleas, that they were either frivolous, irrelevant, or prolix, then the court erred in striking them on motion, and this we think cannot be said. They are not prolix, and if it were intended to- plead a set-off, or to set up a claim by way of recoupment, against the plaintiff’s demand, as the averments of some of them s.eem to indicate, though defective, they could not be considered as either frivolous or irrelevant. The sufficiency of a plea must be tested on demurrer. By demurrer the defects are pointed out, affording the pleader an opportunity-to cure the same by arnendni-ent, and of this he is deprived by a motion to strike. See Troy Fertilizer Co. v. State of Ala., 134 Ala. 333; 32 So. Rep. 618; Brooks v. Continental Ins. Co., 125 Ala. 615; Murphy v. Farley, 124 Ala. 279; Williamson v. Mayer, 117 Ala. 253; Ala. Great So. R. R. Co. v. Clark, 136 Ala. 450; Code, § 3286.
. There are other asisgnments of error relating to the rulings of the court on the admission of testimony, but ah no notice is taken of these.assignments, in argument and brief of counsel, they .will be regarded here as having been waived.
For the error pointed out, the judgment will be reversed and the cause remanded.