Jordan v. Owen

| Ala. | Jun 15, 1855

RICE, J.

Section 2313 of the Code declares, that-“in all suits upon contracts, where the defendant has been personally served with process, where the matter in controversy does not exceed three hundred dollars, the plaintiff is competent to establish the correctness of the demand by his own oath, if the defendant is a resident of the State, unless he in open court denies, upon oath, the truth of the facts proposed to be sworn to by the plaintiff.”

Section 2314 prescribes the manner in which notice must be given of the plaintiff's intention to establish his demand by his own oath.

It is evident that, under section 2313, the defendant is confined to a denial, upon oath, of “ the truth of the facts proposed to be sworn to by the plaintiff.” It must be taken for granted that the legislature did not intend, by this section, to give the plaintiff an unjust advantage over the defendant; and we must so construe it as to prevent such a result, if the words employed in it will justify such construction.

We think it clear, that the plaintiff cannot be permitted, under this section, so to shape the facts which, he proposes to prove by his own oath, as to deprive the defendant of the right to prove by his oath that the demand has been paid. In cases falling within this section, “ the correctness of the demand” must be regarded as not proved by the plaintiff's oath, unless he swears that it has not been paid. He knows whether it has been paid or not. In this respect, he is not like other witnesses. When he undertakes to prove by his own oath the correctness of his demand, he must not only state facts, which, if proved by other witnesses, would make out a prima facie case of indebtedness of the defendant to him, but he must go further, and swear to the fact of non-payment of the indebtedness.

If we do not require him to go to this extent, he would have it in his power, by proving by his own oath special facts which make out a prima facie case of indebtedness,' to deprive the defendant of the right to prove by his oath a payment of such indebtedness; for the defendant is confined to a denial of the facts proposed to be sworn to by the plaintiff. We cannot put a construction on the section, which might enable a plaintiff to obtain any such advantage over the defendant. It is no hardship to require the plaintiff to swear that the demand has not been paid, and to declare the rule to be, that where he fails to swear this, he does not 11 establish the correctness of his demand” by his oath ; and that in such case it is not erroneous to exclude all he may state from the jury. Hiscox v. Hendree, at the present term.

Where the plaintiff’s proposition to prove by his oath the correctness of his demand, is in accordance with sections 2318 and 2314, if the defendant swears that he has paid the demand, or controverts all the facts proposed to be sworn to by the plaintiff, the court should exclude from the jury all that is stated by either of them. — Logan v. Hodges, 7 Ala. 66 ; Hudgins v. Nix, 10 ib. 575. But if the defendant denies, upon his oath, only part of the facts sworn to by the plaintiff, and does not swear that he has paid the demand, then the facts sworn to by the plaintiff which are riot denied by the defendant, may be introduced by the plaintiff as evidence to the jury. — Palmer v. Severance, 9 Ala. 851; Yarborough v. Hood, 13 ib. 176.

The court below may have excluded the plaintiff’s statement from the jury for a wrong reason ; but as there is a good reason for its exclusion — to-wit, the failure of the plaintiff to swear that the demand had not been paid — we are bound to affirm the' judgment.