Edgeworth v. Brue

115 So. 145, 22 Ala. App. 303, 1928 Ala. App. LEXIS 12

Opinion

RICE, J.

Appellant brought suit in detinue against appellee seeking the recovery of one horse, with damages for its detention. Upon the trial court’s overruling his demurrers to appellee’s plea 2, he’ took a nonsuit and appeals, under the provision of Code 1923, § 6431, on the record.

It would seem that said plea 2, in order to be good against apt demurrer, would have had to allege, either that appellant received some benefit under the suit mentioned therein, or that said suit adjudicated his rights sought to be asserted in the instant suit. The plea.did neither, and the appellant’s demurrers should have been sustained. Register v. Carmichael, 169 Ala. 588, 53 So. 799, 34 L. R. A. (N. S.) 309; Sandlin v. Maury Natl. Bank, 210 Ala. 349, 98 So. 190.

The judgment overruling the appellant’s demurrers to this plea is reversed, and one here entered sustaining same. The cause is remanded for further proceedings.

Reversed and remanded.