Dudley v. Whatley

10 So. 2d 43, 30 Ala. App. 579, 1942 Ala. App. LEXIS 138

• Court: Alabama Court of Appeals
• Decided: June 30, 1942
• Docket: 5 Div. 157.
• Status: Published

Opinions

SIMPSON, Judge.

The suit is to recover rent of a dwelling house due the plaintiff’s intestate from December- 1, 1940, to August 15, 1941.' From an adverse judgment below, the defendant appeals.

The defendant first interposed a motion to transfer the cause to the equity docket, claiming an equitable defense to the action, not pleadable at law. Code 1940, Title 13, Section 152. The denial of this motion is the initial assignment of error.

The uniform holding of our Supreme Court is that the refusal of the trial court to transfer a cause from the law docket to the equity docket is not reviewable by appeal, even after a final judgment in the case. Esslinger v. Spragins, 236 Ala. 508, 512, 183 So. 401; Holder v. Taylor, 233 Ala. 477, 172 So. 761; Whitten v. Sheffield Land Co., 233 Ala. 580, 173 So. 48; Maryland Cas. Co. v. Dupree, 223 Ala. 420, 423, 136 So. 811.

This court, therefore, is without authority to consider for revisement this action of the trial court in 'overruling the defendant’s motion to transfer. Code 1940, Title 13, Section 95.

It has been héld that the appropriate remedy to invoke a review of such nisi prius action is mandamus. Esslinger v. Spragins, supra; Ex parte St. Paul Fire & Marine Ins. Co., 28 Ala.App. 351, 184 So. 265.

The second and remaining assignment of error relates to the, exclusion of evidence (offered by defendant) that about five years previously the defendant had, in an entirely different transaction, overpaid a note he owed the plaintiff’s intestate.

The only plea was payment. The defendant did not deny the rent debt, but sought to defeat the suit by the proffered proof aforesaid, viz., the overpayment in 1935 of said note.

Under the pleadings in the case, this evidence was . clearly inadmissible. We know of no law which would authorize such proof in support of a plea of payment. Nor does appellant furnish us with any authority, but merely asseverates: “No- Law or Authority is needed to sustain this. Common Sense and Reason shouts this at you.”

Such argument is, of course, inadequate to -invite a review. Finklea v. Brunson, ante, .p 419, 7 So.2d 94.

But, in deference to the strenuous insistence of counsel that the evidence was improperly excluded, we point out that there was no plea of set-off or recoupment. Perhaps, if, at the time the instant right of action accrued to the plaintiff, the defendant had a legal, subsisting claim against the plaintiff which was properly subject to be set off against the plaintiff’s debt, the ■ defendant could have availed 'himself of this evidence by a plea of set-off. Code 1940, Title 7, Section 350 et seq. This, however, he elected not-to do.

He certainly could not defeat the current rent debt under his plea of payment, when admittedly he has not paid it, merely by proving that, in some prior different transaction with the same creditor years before, he had overpaid an obligation then owing to her.

The learned trial judge in excluding this evidence succinctly .pointed this out: “How in the world could a credit made on a. note back in 1935 be considered payment on a rental obligation in 1940?”

The appeal presents no revisable error. The judgment must be affirmed.

Affirmed.