37 Ala. 306 | Ala. | 1861
Under our system of pleading,, which allows the filing of a- plurality of pleas, it is no objection, that a special plea, presents matter of defense available under the general issue, which is also pleaded. — Dunham v. Riddle, 2 St. & P. 402. Code, § 2237 Pamphlet Acts of 1853 — 54, p. 60. The refusal of this court to-reverse, on aceount of the erroneous sustaining.of a demurrer to. a plea, where the general issue was pleaded, and the defense might have been made under it, is put, not upon 'the ground that the special plea was-objectionable, but that no injury resulted from the erroneous action, of the court. Rogers v. Brazeale, 34 Ala. 512. There is a common-law rule, “that: where a plea amounts to the general issue, it should be so pleaded but it is probable that the enforcement of that rule was discretionary with the court. — Stephens on Pl. 419-422, ch. 2, § 6. It was no valid objection to the second plea, that it amounted to the general issue.
'•The cause of action in the former suit was the sale of the entire property in the cattle, by virtue of process against one of the owners, and at a place not authorized by daw. The charge of the court authorized a finding by the jury of the damage resulting from such sale, but required a deduction from the damage of so much of dhe proceeds of-sale as was paid over on the execution by the sheriff; and instructed the jury, that, if the property sold for as much as it would have sold for at a place prescribed by law, and the proceeds of the sale were all paid over on the execution, then they must find nominal damages for the plaintiff. The jury found nominal damages. The court also refused to separate Hopkinson’s interest from that of the defendant in execution, and allow a recovery of his damages. We think, that the plaintiff’s damages, resulting from the sale, alleged to have been wrongful for the two reasons — that the entire property was sold under an execution against one owner, and that the sale was at a wrong place — were considered and adjudicated; and that, under the charge, those damages were reduced to a nominal amount, because the property sold for its value, and the proceeds of the sale were paid over on the execution. The
We have adopted what we conceive to be the prima-facie ■ construction of the record in the former suit. We do not-consider, for we do not think it necessary, whether parol proof would be admissible to-, show- that, in fact, the-subject-matter of this suit-was. not-adjudicated.
We do not: deem it' necessary to decide any- other ques-tion in the case.
Judgment-reversed, and cause remanded