78 So. 635 | Ala. Ct. App. | 1918
The appellant, plaintiff below, declares on the common counts for merchandise sold appellee (defendant below). The complaint bears the indorsement that *438 the suit is brought on an itemized account, verified by affidavit. The defendant filed pleas setting up payment and the general issue. The cause went to trial on these issues, without objection on the part of the appellant. In the course of the trial, appellant objected to appellee introducing any evidence showing payment of the account sued on, contending that the failure of the defendant to file an affidavit denying the correctness of the account sued on, within the time allowed by law for pleading, precluded the appellee from setting up any defense. In support of this contention, appellant relies upon the act approved September 17, 1915 (Acts 1915, p. 609), amending section 3970 of the Code of 1907. Based on this theory of the statute, the appellant assigns 22 grounds of error.
The appellant's view of the statute is mistaken. This statute does not undertake to describe a cause of action, nor prescribe a defense to any action. Sullivan Timber Co. v. Brushagel,
The action of the trial court in overruling appellant's objections to the evidence and his motion for a new trial based on appellant's theory of the statute in question was free from error.
Affirmed.