Merritt v. Flemming

42 Ala. 234 | Ala. | 1868

JUDGE, J.

1. One ground upon which it is insisted the demurrer to the pleas should have been overruled, is, that the causes of demurrer were not specified as required by the statute. — Rev. Code, 2656.

It was decided in Newsom v. Huey, 36 Ala. 37, that where the record does not affirmatively show that the demurrer was defective in the particular named, this court cannot presume such a deficiency. This adjudication is decisive of the same point in the present case, and is not in conflict with either of the cases cited by the appellants in support of their position.

The first case thus cited, is Owsley v. The West Point Railroad Company, 37 Ala. 560 ; the second is Henley v. Bush, 33 Ala. 636; and the third is Robinson v. Mendenhall, 35 Ala. 722. In the first case, the causes of demurrer were specified, and passed upon by the court below; and nothing was left to this court but to determine upon the sufficiency of those assigned, to meet the defects existing in the complaint; nothing was left to inference or presumption, in regard to the specification of the causes of demurrer. In the second case, it was held, that inasmuch as the Code requires the grounds of demurrer to be specified, a demurrer to a plea could not be visited upon the complaint. And in the third case, the ground of demurrer assigned was held to be so imperfect as that the demurrer was to be considered a general one, without specifying any grounds, and the judgment below overruling the demurrer was sustained.

It is on the doctrine of reasonable intendments to sustain the action of the primary court when error does not affirmatively appear, that the appellate court will presume, when a demurrer has been sustained by the primary court, that the causes of demurrer were specified as required by the statute ; and that when a demurrer has been overruled by tbe primary court, the intendment will be made, the record not showing the contrary, that the causes of demurrer were not so specified.

2. The demurrer was rightfully sustained to each of the pleas. More than thirty years ago, it was held by this court, that a promissory note executed by one in compromise of proceedings against him for bastardy, is valid, and of sufficient consideration to sustain a recovery at law. Robinson v. Crenshaw, 2 Stew. & Port. 276. And this exposition of the law was subsequently recognized and acted upon in the ease of Ashburne v. Gibson’s Adm’r, 9 Port. 549.

We know of no sound principle, and can conceive of no solid reason, requiring a different result, when the note is made payable to the mother of the despoiler’s victim, and the offspring of the illicit intercourse comes into the world still-born, after the compromise has been effected.

Let the judgment be affirmed.