Gaston v. Parsons

| Ala. | Jan 15, 1839

GOLDTHW AITE, J

— The judgment entry, unexplained, would induce the belief, that the defendant in the court below withdrew his plea, and assented to the rendition of a judgment for .the amount of the note; but the bill of exceptions satisfactorily shows, that the-plea in abatement was not withdrawn, or the defence abandoned. The defendant might have insisted on his right to a judgment of non -pros, for want of a replication to his plea. The omission so to do, did not place him in a de fenceless condition, or authorise the court to render any judgment against him; and the County court erred in so doing.

If we were even to presume that the usual replication to a plea of this description was filed, and that an issue of mil fiel record had been presented to the court for its determination, it would not better the condition of the defendant in error. The writ offered in evidence showed the commencement of a suit, apparently for the same cause of action, on the eighth day of May, eighteen hundred and thirty-seven. This was returnable to the Circuit court, to be held on the seventh Monday after the fourth Monday of March, eighteen hundred and thirty-seven; and the presumption is strong, if not conclusive, that the Circuit court was in session when the second writ was issued, on the nineteenth of .May, eighteen hundred and thirty-seven, returnable to the County court, and the foundation of this suit. The first writ was not executed on the defendant, and the return is ‘ not found;’ but this will not authorise us to infer an abandonment of the suit on the part of the plaintiff, even if that could avail him on the issue we have named.

The evidence offered was proper and pertinent to support the plea on an issue of mil tiel record, and ought not to have been rejected, if such was, in point of fact, the state of the record in the court below.

In either aspect of the case, there was error in the action of the County court; and its judgment is reversed, and the cause is remanded.