Lindsey v. Town of Albertville

Alabama Court of Appeals

Lindsey v. Town of Albertville

92 So. 26, 18 Ala. App. 298, 1921 Ala. App. LEXIS 245

Alabama Court of Appeals·Decided November 15, 1921·No. 8 Div. 803.·Published·Cited by 1 cases

Opinion

BRICKEN, P. J.

Epon an affidavit charging appellant with “violating the prohibition law's of the town of Albertville, selling intoxicating bitters or beverages,” he was convicted in the mayor’s court and appealed to the circuit court. On the trial in the circuit court, counsel for the municipality filed a complaint charging the appellant with the violation of section 3 of Ordinance No. 12 of the town of Albertville, setting out said section in full in the complaint. The defendant did not question the sufficiency of the complaint, but made a motion (for the first time) in the circuit court to strike the original affidavit, because charging no offense and being insufficient to support a prosecution or a conviction.

[1] The affidavit was not void, and, for the purpose of this case only, conceding that it was defective, and that the motion was the proper method of raising that question, the motion came too late. Clark v. Town of Uniontown, 4 Ala. App. 264, 58 South. 725; Aderbold v. City of Anniston, 99 Ala. 521, 12 South. 472. Both the affidavit and complaint charged the defendant as “A. O. Lindsey.” The complaint' contained the allegation that his Christian name was not other *299 wise known. The defendant filed a plea in abatement, setting up that the defendant’s Christian name is not “A. O.” as shown therein, but said letters are his initials only; and that his Christian name is Allen. Without replying thereto in any manner, or interposing any demurrer, the municipality joined issue on the plea.

[2] In this state of the pleadings the defendant complains that the court erred in admitting evidencé, over his objection, showing that the defendant was commonly known and called “A. O. Lindsey,” that he was called “Dr. Lindsey,” and that he signed his check “A. O. Lindsey.” We think this contention is correct, and that the only issue tendered by the pleading was whether or not his Christian name was “Allen,” a fact which was proven without dispute. '

Other questions are argued in brief by counsel for appellant (without citation of authorities); but, as the case must be reversed for the error pointed out, there appears no necessity to discuss these questions.

The judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.

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BRICKEN, P. J.

Epon an affidavit charging appellant with “violating the prohibition law's of the town of Albertville, selling intoxicating bitters or beverages,” he was convicted in the mayor’s court and appealed to the circuit court. On the trial in the circuit court, counsel for the municipality filed a complaint charging the appellant with the violation of section 3 of Ordinance No. 12 of the town of Albertville, setting out said section in full in the complaint. The defendant did not question the sufficiency of the complaint, but made a motion (for the first time) in the circuit court to strike the original affidavit, because charging no offense and being insufficient to support a prosecution or a conviction.

[1] The affidavit was not void, and, for the purpose of this case only, conceding that it was defective, and that the motion was the proper method of raising that question, the motion came too late. Clark v. Town of Uniontown, 4 Ala. App. 264, 58 South. 725; Aderbold v. City of Anniston, 99 Ala. 521, 12 South. 472. Both the affidavit and complaint charged the defendant as “A. O. Lindsey.” The complaint' contained the allegation that his Christian name was not other *299 wise known. The defendant filed a plea in abatement, setting up that the defendant’s Christian name is not “A. O.” as shown therein, but said letters are his initials only; and that his Christian name is Allen. Without replying thereto in any manner, or interposing any demurrer, the municipality joined issue on the plea.

[2] In this state of the pleadings the defendant complains that the court erred in admitting evidencé, over his objection, showing that the defendant was commonly known and called “A. O. Lindsey,” that he was called “Dr. Lindsey,” and that he signed his check “A. O. Lindsey.” We think this contention is correct, and that the only issue tendered by the pleading was whether or not his Christian name was “Allen,” a fact which was proven without dispute. '

Other questions are argued in brief by counsel for appellant (without citation of authorities); but, as the case must be reversed for the error pointed out, there appears no necessity to discuss these questions.

The judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.

Lindsey v. Town of Albertville, 92 So. 26, 18 Ala. App. 298, 1921 Ala. App. LEXIS 245 (Ala. Ct. App. 1921).

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Opinion

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