Ellis v. Drake

Nov 13, 1919

6 Div. 826.

Reporters:: , ,
Before:: Gardner

GARDNER, J.

[1] Statutory action of ejectment by appellee against appellant, resulting in a judgment for the appellee, from which this appeal is prosecuted. The submission is upon the motion of the appellee to strike the bill of exceptions, and also upon the merits. The judgment was rendered June 5, 1918, and the bill of exceptions appears to have been filed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍August 30, 1918 (it appearing that the trial judge was out of the state, Acts 1915, p. 816), and on December 6, 1918, signed and approved by the presiding judge. The bill of exceptions therefore was not signed within the period required by law, and must therefore be stricken. Section 3019 of the Code of 1907.

This leaves for consideration only the ruling of the court upon the demurrer to the plea in abatement, and to plea No. 2, and also the demurrer upon the motion to transfer the cause to the equity side of the docket. The plea in abatement was‘to the effect that the plaintiff should not be permitted to further prosecute the cause, for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that she is a married woman under the age of 18 years, and therefore is not authorized to maintain an action in her own name. Attached to said plea was an affidavit by the attorney for the defendant to the effect that he was such attorney, and “that he is informed, and upon such information believes, that the facts set out in the foregoing plea are true.”

[2] Pleas in abatement must be verified by affidavit, unless they are as to matters of record. Section 5332, Code of 1907; Gaston v. State, 88 Ala. 459, 7 South. 340 ; 4 Mayf. Dig. 498. The plea stated the facts in positive terms, but the affidavit of the attorney was merely as to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍his belief of facts, and was insufficient under the previous rulings of this court. Empire Guano Co. v. Jefferson Fertilizer Co., 154 Ala. 409, 45 South. 657; M. & M. R. R. Co. v. Ala. Mid. R. R. Co., 123 Ala. 145, 26 South. 324; Niehaus & Co. v. Cook, 134 Ala. 223, 32 South. 728; Sellers v. State, 162 Ala. 35, 50 South. 340; Holman v. State, 144 Ala. 95, 39 South. 646. See, also, 31 Cyc. 540-544. The demurrer taking the point was properly sustained. McCoy v. Harrell, 40 Ala. 232.

[3] Plea No. 2 merely set up adverse possession on the part of the defendant as a defense to the suit, which was availing to him under the plea of general issue. There is nothing in this ruling, therefore, of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍which appellant can complain.

[4, 5] The defendant filed a motion to have the cause transferred to the equity side of the docket under the provisions of the Acts of 1915, p. 830 et seq. This act requires that such a motion shall state the substance of the equitable right or defense which the defendant desires to assert, and must be verified by the affidavit of some person having knowledge of the facts. The affidavit in the instant case was identical to that filed to the plea in abatement, above noted, by the same attorney, and clearly insufficient. But, in addition to this, we are of the opinion that the motion did not set up any equitable right ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or defense on the part of the defendant. Plaintiff’s demurrer properly presented these questions, and the court correctly sustained the demurrer thereto. Pieme v. Arata, 202 Ala. 427, 80 South. 811.

These are the only questions appearing upon the record for our consideration, and, finding no error, the judgment appealed from will be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.