80 Ala. 108 | Ala. | 1885
On the trial of an appeal from a justice’s judgment, the statute directs that “when [the sum claimed] exceeds twenty dollars [the cause must be tried] upon an issue to be made up under the direction of the court, and tried by a jury.” Code of 1876, § 3122. The present case was an appeal from a justice’s judgment, and the sum claimed exceeded twenty dollars. Certain pleas of the defendant are found in the record ; but it happens that they were filed before the complaint was tendered in the Circuit Court. A complaint had been filed before the justice; but before the trial in the Circuit Court another and more formal complaint was presented, on which it must be inferred the trial was had.
It is contended for appellee that inasmuch as the record does not show that the issue was made up under the direction of the court, we can not consider the defendant’s pleas as forming any part of the issue; but must presume that the case was tried only on the general issue. ¥e can not assent to this. We do not hold it essential that the record shall show affirmatively that the court directed the formation of the issue. Nor do we think it necessary that the court shall participate actively therein, unless thereto requested. Counsel usually prepare their own pleadings, and form their own issues; and if the court is not asked to give direction, nor to rule on the pleadings, and pleas to the merits are found in the transcript, we will presume the cause was tried on the issue thus presented.
It is objected'that each of the pleas is insufficient. No demurrer was interposed to them, and their sufficiency is not before us. Issue being formed.upon them, as is shown by the record, if the defendant proved the truth of either one of them, he made good his defense. Mudge v. Treat, 57 Ala. 1.
As the record now appears, charges 2, 3 and 4, asked by defendant, ought to have been given.
Reversed and remanded.