Cole v. Tuck

108 Ala. 227

Opinion

HARALSON, J.

The defendant was certainly not chargeable with the $10, attorney’s fee. He excluded it, by the terms of his endorsement, limiting his liability, as indorser to the note, to $15. only. But demurrer was not the proper remedy. If that part of the complaint in respect to the attorney’s fee, had been stricken, a good complaint would have remained. A motion to strike in such case, is the proper remedy, except in suits on penal bonds, assigning different breaches, some well. and others not well assigned. — L. & N. R. R. Co. v. Hall, 91 Ala. 118 ; C. & W. R. Co. v. Bridges, 86 Ala. 448 ; Copeland v. Cunningham, 63 Ala. 394. The demurrer to that part of the complaint claiming attorney’s fees was,, therefore, properly overruled.

The demurrer to the entire complaint was also properly overruled, if on no other grounds, certainly for the reason, that the complaint set out several excuses for not having brought suit against the maker of the note indorsed by defendant, within the time required by statute for instituting such suit to bind an indorser, some of which were certainly good. — 3 Brick. Dig. 705, §§ 67, 68.

The facts on which the case was tried by the court, without a jury, do not sustain the complaint, and the finding of the court. The burden was on the plaintiff to make out his case. On his evidence, it is not clear he was entitled to a verdict, and the evidence of defendant makes a plain case against him.

The judgment of the court below is reversed, and one will be here rendered in favor of the defendant.

Reversed and rendered.