Lindsay v. Barnett

130 Ala. 417

Opinion

DOWDELL, J.

The only question presented by this record is the overruling by the court below of the plaintiff’s motion to strike the third plea of the defendant. It is insisted by appellant that this is a plea pms darrein continuance, and as it was not verified his motion to strike should have been sustained. The plea was filed together with other pleas at the first term and before issue joined, and set up payment after suit begun. A plea of puis darrein continuance is a plea filed after issue joined, and setting up matter of defense arising since ihe last 'continuance or after suit commenced. The third plea of the defendant does not come within this characterization and "was not required to be sworn to. Dryer v. Lewis, 57 Ala. 551; McDougald's Admr. v. Rutherford, 30 Ala. 253; Sadler v. Fisher’s Admr., 3 Ala. 200. There was no error in overruling the motion to strike.

The judgment of the circuit court is affirmed.