Camp v. Marion County

91 Ala. 240

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

COLEMAN, J.

The court has judicial knowledge of the names of all the counties in the State, and of their corporate character.—Overton v. State, 60 Ala. 73; Code, § 886. The demurrer was properly overruled.

Bills of exceptions are of statutory origin. At common law, errors were revisable by writ of error, and this would not lie, except for error apparent on the record.—Petty v. Dill, 53 Ala. 643. The appropriate office of a bill of exceptions is to introduce on the record rulings of the court which are not intrinsic to the cause, but arise' incidentally in its progress. Rolater v. Rolater, 52 Ala. 111; 8 Por. 458.

Section 2739 of the Code provides, that if suit be brought on a moneyed demand, for an amount of which the court has jurisdiction, and a less sum be recovered, unless the amount is reduced below that of which the court has jurisdiction, by a set-off successfully made by the defendant, the judgment must be set aside, and the suit dismissed, unless he or some one for him make affidavit, which must be filedin the cause, that the amount sued for is actually due, and that a recovery of the true amount was prevented by failure of proof, the interposition of the statute of limitations, or some other sufficient cause, to be judged of by the court.

The suit was brought for an amount of which the court had jurisdiction. The defendant pleaded set-off. Plaintiff was not required to file the affidavit required in the section of the Code above quoted, if the recovery was reduced to an amount of which the court did not have jurisdiction, by reason of a set-off successfully pleaded. There is no bill of exceptions in the record. We must presume, in favor of the judgment of the court below, that the plea of set-off was successfully maintained.—Wynn v. Simmons, 33 Ala. 272. If the judgment was notin fact reduced by a set-off, to a less amount than that of which the court had jurisdiction, but by reason of some other cause, the facts to show this ought to appear in a bill of exceptions. • The necessity for plaintiff to file the affidavit would then be shown, and failing to do so, the court would be placed in error, in refusing to dismiss the suit, as provided in the statute. The reason assigned by the court for refusing the motion, in the judgment rendered, is no part of the judgment proper, and can not be considered as any part of tbe record. Although a wrong reason was assigned so far as the record shows, the presumption that the recovery was reduced by set-off must prevail.

Article VI, section 5 of the Constitution of Alabama, Code, p. 36, confers jurisdiction on the Circuit Courts in civil cases, only when the matter or sum in controversy exceeds fifty dollars. Section 886 does not authorize a county, any more than an individual, to sue in the Circuit Court, for an amount less than required by the Constitution to give the court jurisdiction.—Brown v. Ala. Gr. So. R. R. Co., 87 Ala. 370.

Affirmed.