43 So. 785 | Ala. | 1907
When this cause was before this court upon a former appeal, it was held that the demurrer, comprising a number of assignments, to the bill, ivas not well taken, and accordingly a decree was rendered in this court overruling it and remanding the cause—Griffin v. Drennen et al., 145 Ala. 128, 40 So. 1016. Without the bill being amended the respondent Drennen interposed to it a demurrer containing the samé grounds
It is not insisted that this was error, unless it can be affirmed that the demurrer was well taken to the bill and that the pleas were a defense to it. We must decline to reconsider those grounds of the demurrer, which were held by this court on former appeal to be without merit. And this disposes of every assignment of the demurrer insisted on, except the one asserting an estoppel on the part of the complainant to maintain the bill, which is so clearly without merit as not to'need any further comment. Those of the pleas insisted on as presenting good defenses, except perhaps the seventh, are nothing more than a reiteration of the several grounds of the demurrer which are overruled by this court. Besides, no one of them presented matter of defense proper for a plea, but should have been set up by demurrer as was done. The facts averred in the 7th plea do not show that the complainant was estopped to maintain the bill.
The complainant, having established by proof the only fact averred in the bill not admitted by the answer, was entitled to tin1 relief decreed.
Affirmed.
