Berry v. Ferguson

58 Ala. 314

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

MANNING, J.

1. There was no error in consolidating in the City Court, the three separate actions brought before the justice of the peace, and removed thence together by certiorari upon a single petition of these appellants, and one bond executed by them, into the City Court. The parties to each of the actions were the same; the notes upon which they were founded are all of the same date; and they appear to have been given in the same transaction.

2. The statute of jeofails authorizes, according to the construction given to it in several cases, the amendment of a complaint by the addition of new parties plaintiff, and the striking out of the names of others, provided there be not an entire change of the parties. There was no error in allowing the amendments made in the present cause.

8. The writing put in as a special plea, that the ownership of the notes was not in the plaintiffs, is, in fact, a mere affidavit, setting forth in the body of it that the allegation therein is true, “to the best of [the] knowledge, information and belief” of affiant, one of the defendants. Such a writing is not a plea. The averments of a plea must be direct and positive. In some instances, when an affidavit of the truth of the averments in a plea must be made, it may be qualified by a statement of the information and belief of the affiant. Rut such qualification in the plea itself, makes it wholly insufficient. This writing was, therefore, properly disallowed as a plea, and it was correctly ordered that it be taken from the files.

Let the judgment of the City Court be affirmed.