Lunsford v. Butler

102 Ala. 403

Opinion

McCLELLAN, J.

We are of opinion that the statement in the first count of the complaint, that the account therein sued upon “is verified by affidavit,” is a substantial compliance with section 2773 of the Code in respect of the requirement that the fact of verification shall be indorsed “on the summons and complaint or other original process,” and that the trial court properly admitted the account thus referred to in evidence under that count of the complaint. The defendant not having within the time allowed for pleading, or at all, filed in the cause an affidavit denying on information and belief, the correctness of this verified account, it was, on the trial, competent evidence of the correctness of the items set down in it. Id. There were some discrepancies in the testimony of Martin Butler to the effect that the plaintiff's intestate made the entries in the book at the time the work for which charges were made was performed ; as, for instance, he said these entries ' were made in 1889, when most of the items entered are put down as constituting the account of 1890 ; but, notwithstanding these, his evidence was sufficient — being in terms that the entries were made when the items transpired — to render the book prima facie admissible in evidence. Considering the verified account and this book of original entries along with all other evidence adduced before the judge of the city court, the case being tried without jury, we reach the same conclusion as was reached below as to the fact and amount of defendant's indebtedness to the plaintiff; and the judgment of the city court is, therefore, affirmed.