96 So. 577 | Ala. | 1923
The trial in this case was had on the 21st and 22d days of November, 1921. These were days of the week preceding the call of the Sixth division in this court. On the authority of the act "to amend section 16 (Acts 1915, p. 812) of an act entitled 'An act to further prescribe and regulate the qualifications, number, designation, duties and powers of the circuit judges of the state and to provide for their election and appointment,' approved September 25, 1915," it is insisted that the court was without authority to try civil causes at that time, and that its judgment is coram non judice. If this contention were to be disposed of upon consideration of the mere language of the amendatory act (Acts 1919, p. 275), it would be necessary to hold in agreement with the contention stated, for that language is explicit and mandatory to the effect that "during the week preceding" the call of the Sixth division "and during the first week" of that call in this court, "no civil causes shall be tried in the law division" of the circuit court of Jefferson, and while the parties agreed to a trial at that time, consent cannot confer a jurisdiction forbidden by law. When the law prescribes time and place, time and place are as essential elements of jurisdiction as subject-matter and parties. Ex parte Branch,
"Civil cases requiring juries or witnesses need not be set for trial during Christmas week. Any judge shall, whenever he deems it necessary, call on the chief justice of the Supreme Court to assign one or more judges to relieve the judges who need assistance in clearing the dockets, civil and criminal."
In that title there is nothing to give notice of the provision of the amendatory act forbidding, in effect, the circuit court of Jefferson to try civil causes during the first, or preceding week, of the call of the Sixth division. It cannot be said, therefore, that the subject of the amendatory act is expressed in its title, as required by section 45 of the Constitution. It follows that, as to time, the trial court proceeded within the limits of its jurisdiction as fixed by the act of September 22, 1915, Acts, p. 707.
Appellants argue certain assignments of error which go to the proposition that plaintiff's response to their demand for a bill of particulars was insufficient. We have been unable to see that the bill furnished to defendants did not fairly apprise them of the items upon which plaintiff insisted at the trial. Morrisette v. Wood,
This cause went to the jury on a number of the common counts, some of which sought to recover an item of $483; in others, the item of $17 was claimed. There was no error in overruling defendants' motion to strike the counts claiming the item of $17 as being below the jurisdiction of the circuit court, nor in overruling the demurrers to these counts on the same ground. That these counts may be joined is declared by the statute. Code, § 5328. Defendants have nothing to complain of in that plaintiff sought to recover both items in one suit. The amount of the verdict, being in excess of $50, is conclusive that there was no evasion of the limitation of the jurisdiction of the circuit court as to amount. Had the verdict been for $50 or less, defendants would have been protected against an abuse of the court's jurisdiction by the provisions of section 5355 of the Code.
With respect to those rulings of the court by which demurrers to pleas 4 and 5 were sustained, we think it may be justly said that the pleas lacked certainty. They allege that plaintiff's said suit arose out of a certain undertaking by and between plaintiff and defendants whereby they were "to mutually prosecute the certain proceedings in bankruptcy therein mentioned," and, in effect, that plaintiff failed to perform his part of the contract. No such proceedings were mentioned in the complaint. But, however that may be, the pleas were clearly the equivalent of the general issue, which was pleaded, and no harm resulted from the rulings. In Martin v. Massie,
Plea 6 is open likewise to the criticism of uncertainty. But apart from that, while it is the general rule that the statute of frauds, to be availed of must be specially pleaded — to which effect many cases might be cited from our reports — yet, where the plaintiff declares on the common counts only, the rule of general observance is that the defendant cannot be required to anticipate that plaintiff will rely upon a collateral promise not in writing, but may avail himself of the protection of the statute under the general issue. 9 Ency. Pl. Pr. 711; Boston Duck Co. v. Dewey, 6 Gray (Mass.) 446; Harris v. Frank,
Counts 1 and 2 were eliminated by the general charge. It is now of no consequence whether or not the court committed error in overruling the demurrers to these counts.
No error appearing, the judgment of the circuit court must be affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, THOMAS, and MILLER, JJ., concur.
McCLELLAN and GARDNER, JJ., concur specially.
McCLELLAN and GARDNER, JJ., do not construe the act of 1919, above referred to, as prohibiting the trial of this cause by agreement of the parties, and entertain the view that the judgment was not void, regardless of the constitutional question determined by the court, and that a consideration of such constitutional question is not reached. They therefore concur in the result.