Clearman v. Cobbs

73 So. 83, 197 Ala. 546, 1916 Ala. LEXIS 126

• Court: Supreme Court of Alabama
• Decided: November 16, 1916
• Status: Published

Opinion

MAYFIELD, J.

The action is on a negotiable promissory note, and is brought by an assignee thereof, against the maker. The complaint alleges facts to show that plaintiff was a bona fide purchaser before maturity for value, and in due course of trade. The defendant attempted to set up a number of defenses, set-off, fraud, etc.; but demurrers were sustained to most all the special pleas. The trial resulted in verdict and judgment for the plaintiff, from which judgment the defendant prosecutes this appeal.

There is no bill of exceptions, and hence the only errors assigned go to the rulings of the court in sustaining demurrers to special pleas and in overruling demurrers to the complaint.

(1, 2) The counts in the complaint were not only sufficient, but contained averments, unnecessary, but which probably anticipated defenses requiring replications; and the pleader therefore attempted to forestall these defenses, and to avoid replying thereto. Consequently most all the defenses attempted to be set up by special pleas, except'that of set-off, were raised by the general issue to the complaint, under its allegations attempting to forestall the attempted special defenses. The order of pleading and the burden of proof in actions on commercial paper was discussed at some length in the recent case of Elmore County Bank v. Avant, 189 Ala. 418, 66 South. 509, and the cases were there reviewed. In that case it is said, after stating the order of pleading: “If, however, the plaintiff should allege in his complaint the same facts required to be alleged in his replications, in the way of anticipating the defense, then, of course, pleas like those filed in this case would not be good, because not an answer; but, as pointed out in the opinion quoted, the orderly and usual way is by special pleas and special replications. Still, the practice is different in some of the other states as may be seen by an examination of the text-books on the subject.”

(3) The plea of set-off, which was numbered 6, was defective, in that it failed to allege facts to show any right of set-off against this plaintiff. It attempted to show what might be considered as a set-off or defense against plaintiff’s indorser, but no facts were alleged which show any set-off against the plaintiff, or that would be a defense against the action on the note, even if the suit had been brought by the indorser instead of his indorsee.

This is an action on a promissory note, and the appeal is on the record proper, as before stated; yet this record shows that the pleadings in the case take up 80 pages of the transcript. It is difficult to see the necessity, or even the propriety, of such copious pleadings in an. action on a promissory note, especially when the complaint, as in this case, negatives utterly every special defense available in an action by an indorsee against the maker of the note.

We find no error in the record proper, so the judgment appealed from must be affirmed.

Affirmed.

Anderson, C. J., and Somerville and Thomas, JJ., concur.