Kelly v. Johnson

129 Ala. 627

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

SHARPE, J.

—)

Under the 'authority of Hamilton v. Griffin, 126 Ala. 600; and Burns v. Beeves, 127 Ala. 127, it must 'be held that the cause of action declared on in the complaint was within the class of demands which by section 8728 of the 'Code is made subject to the defense of set-off. The striking out of the 3d plea was, therefore, error.

The statement offered as testimony of Rushing relates to acknowledging satisfaction of mortgages which had been -paid and not to the failure to enter credits 'of partial payments on the unpaid mortgage of 1896 described in the second count, which after the 'amendment of the complaint contained the Whole cause of suit. For that .reason, if for no other, the statement was immaterial and was properly excluded.

For»the error referred to the judgment will be reversed and the cause remanded.

Reversed and remanded.