Dundee Mortgage & Trust Investment Co. v. Nixon, 95 Ala. 318

Dundee Mortgage & Trust Investment Co. v. Nixon

95 Ala. 318 | Ala. | 1891

COLEMAN, J.

Facts which are averred in a complaint need not be pleaded in defense, or, if set up in a plea, as a general rule, need not be proved by the plaintiff. So far as the rights of the plaintiff are concerned, the defendant has the right to consider facts averred in the complaint to be true.

The complaint in this case sufficiently shows that plaintiff *321is a foreign corporation. The plaintiff offered in evidence a promissory note, beaded and dated TJniontown, Ala. Prima facie, Alabama was tlie place of its execution, and no other evidence being offered on this question, tbe law presumes the contract was made in Uniontown, Ala.—Farrior v. Security Co., 88 Ala. 27; Amer. Freehold Land Mortgage Co. v. Sewell, 92 Ala. 163. It was proven without dispute that plaintiff had not complied with the Constitution of the State, and the statutory provision which requires that for- ' eign corporations shall have a known place of business and an authorized agent before doing business in this State.

It has been frequently decided that, however immaterial, defective, or demurrable a plea may be, if issue be joined upon the plea, and the evidence sustains it, the defendant has the right to have the court to charge the jury upon such plea.

The record shows that plaintiff filed several demurrers to the pleas of the defendant. After this was done, the defendant, by leave of the court, withdrew his pleas, and demurred to the complaint. The court overruled the demurrer to the complaint, and by leave of the court the defendant re-filed his former pleas. The record does not inform us that plaintiff re-filecl his former demurrer to the pleas of defendant. After the defendant’s pleas were refiled, as shown in the judgment of the court, the only entry is, that “plaintiff by its attorney demurs to said pleas.” The demurrer, or assignments for cause of demurrer, upon which the court ruled, being no where stated in the record, we must presume in favor of the correct ruling of the court that the demurrer was general, or insufficient, even though the plea might have been held defective as against a demurrer properly framed. — Mastcrson v. Gibson, 56 Ala. 56. We must consider the pleadings as if issue had been joined upon all the pleas except the 4th, without the interposition of a sufficient demurrer. The 7th plea of defendant, not to mention others, was fully sustained by evidence which was not contradicted.

The bill of exceptions states that, in consequence of the charge given by the court to the jury, the plaintiff “took a nonsuit, and reserved the point for the determination of the Supreme Court by bill of exceptions.” The record of the judgment shows that “plaintiff, in open court, excepts to the ruling of the court overruling its demurrer to the pleas Nos. 1, 2, 3, 5, 6 and 7, and also excepts to the charge of the court to the jury, and by consent of the court takes a nonsuit with a bill of exceptions.”

*322A nonsuit taken in consequence of adverse rulings on tbe pleadings, is voluntary, and does not fall within the statute, which authorizes a plaintiff suffering a nonsuit to reserve by bill of exceptions rulings of the court for review on appeal to this court. — 3 Brick. Dig. 678, § 5, and authorities cited.

A nonsuit was taken in consequence of the charge given by the court to the jury. The correctness of the charge is properly before us for review. In view of the pleadings and the evidence, there was no error in the charge given.

It is not every act done by a foreign corporation in this State, to which the Constitution and statute apply, which require that it shall have a known place of business and an authorized agent. — Brown Hamilton Shoe Co. v. Ware, 92 Ala. 145; 9 So. Rep. 137. The statute does apply to the loaning of money. — Nelms v. Edinburgh Amer. L. Co., 9 So. Rep. 141; 92 Ala. 157.

The application of the foregoing principles leads to an affirmance of the case.