Jefferson County Savings Bank v. Interstate Savings Bank

59 So. 349, 5 Ala. App. 363, 1912 Ala. App. LEXIS 191

• Court: Alabama Court of Appeals
• Decided: May 16, 1912
• Status: Published

Opinion

WALKER, P. J. —

The third and fourth counts of the complaint were subject to the demurrers interposed to them. It did not appear from the allegations of either of those- counts that the bill of exchange sued on had been indorsed by its payee, nor that the plaintiff was its legal holder or owner. — Code, §§ 4985, 1986.

The court was in error in striking the defendant’s third and fourth pleas. These were sworn pleas denying the indorsement of the bill of exchange sued on by the payee thereof and the ownership of that paper by the plaintiff. These issues were properly raised by special pleas under oath. They were not raised by the plea of the general issued. — Code, § 3967; Manning v. Maroney, 87 Ala. 563; 6. South. 343; 13 Am. St. Rep. 67; Paige v. Broadfoot, 100 Ala. 610; 13 South. 426; 14 Ency. of Pleading & Practice, 664. The pleas were subject to amendment if they were defective in any respect.

Any supposed insufficiency of their averments should have been availed of by demurrer, not by motion to strike, as manifestly they were not irrelevant or frivolous. — Wefel v. Stillman, 151 Ala. 149; 44 South. 203; Mann Lumber Co. v. Bailey, 156 Ala. 598; 47 South. 325.

To recover on a hill of exchange it is necessary for the plaintiff to prove such of the indorsements as carry the title into him. — Anniston Pipe Works v. Mary Pratt Furnace Co., 94 Ala. 606, 10 South. 259. It was error to receive in evidence the paper sued on without proof of the indorsement thereof by its paj^ee.

Reversed and remanded.