North American Acc. Ins. Co. v. Rather

84 So. 566, 17 Ala. App. 238, 1919 Ala. App. LEXIS 224

Opinion

MERRITT, J.

[1,2] It was not a necessary averment of the pleas in abatement, filed by the defendant in the circuit court, that it had heretofore interposed the same objection in the cause in the inferior court of Decatur, while it was necessary to show that it had been done primarily in the inferior court when brought into question in the circuit court; yet, notwithstanding all this, when the defendant in his plea, whether formally or informally, stated it as a fact that this same objection had been interposed in the inferior court, it made this the statement of a fact, a material fact — one that it assumed the burden of proving, and having failed to prove, was not entitled to recover. It was a fact that had to be proven as having been done primarily in the inferior court when brought into question, and the appellant having voluntarily assumed the burden, and thereby raising the question and putting it in issue, it should have proven it.

There was a total want of testimony to show that this plea had been interposed in the inferior court; in fact, the transcript sent up to the circuit court as it appears in the record shows that the case was tried on its merits in the inferior court. And the plea came too late when filed for the first time in the circuit court. L. & N. R. R. v. Barker, 96 Ala. 435, 11 South. 453; Blair v. Williams, 159 Ala. 655, 49 South. 71.

The trial court was right in granting the plaintiff a new trial, and its action in so doing is affirmed.

Affirmed.