Mertins v. Hubbell Publishing Co.

58 So. 679, 4 Ala. App. 500, 1912 Ala. App. LEXIS 343

Opinion

WALKER, P. J.

Several of the pleas presented an issue as to the plaintiff’s being a foreign corporation which had not complied with the conditions prescribed by law to entitle it to do business in this state. We are unable to discover the materiality of the issues so tendered, as no pleading in the case indicated in any way that the contract sued on was an Alabama contract, or that the plaintiff had ever engaged in or transacted any- business in this state. But the plaintiff, after its demurrers to those pleas had been overruled, joined issue on them, thus making their allegations the subject of proof in the case and its right of recovery dependent upon those allegations not being proved. In this situation the defendant was entitled to answers from the plaintiff to interrogatories to it calling for testimony which would tend to support the averments of any plea upon which issue was joined, and, if any plea was proved by such answers or otherwise, the plaintiff could not properly have judgment in its favor.

In the course of the trial the plaintiff made admissions which fully supported some of the pleas referred to. In the face of these admissions tke° appellant cannot well support a claim that he was prejudiced by the •refusal of the court to require the appellee by answers to interrogatories to furnish evidence in support of the pleas. But the plaintiff could not have been entitled to recover after joining issue on pleas in bar and admitting the truth of their averments. A repleader should be awarded to the end that there may be a trial of the case on its merits.

Reversed and remanded.