Parsons Lumber Co. v. West-Steagall G. & M. Co.

50 So. 1034, 163 Ala. 594, 1909 Ala. LEXIS 569

• Court: Supreme Court of Alabama
• Decided: December 16, 1909
• Status: Published

Opinion

SIMPSON, J.

The suit in this case, by the appellee against the appellant, is on an open account, and at the foot of the complaint is the statement: “This suit is based upon an itemized sworn statement of account.” Judgment by' default was taken, and the amount ascertained by the court without a Avrit of inquiry; the judgment entry stating that “plaintiff have and recover of the defendant, upon a verified account, the sum of $253.20.”

We have held that under this statute, in a case wherein it was stated, at the , end of the complaint, “The account is verified by affidavit,” and in Avhich the judgment entry did not state that the statute had been complied with, a judgment by the court Avithout a writ of inquiry was erroneous. — Greer & Walker et al. v. Liipfert Scales Co., 156 Ala. 572, 47 South. 307. The only authority for dispénsing Avith the writ of inquiry is section 3971 of the Code of 1907, and we must presume that each of the requirements therein laid down was deemed material by the Legislature, to wit: The plaintiff “shall file * * * an itemized statement of account, verified by the affidavit of a competent witness, made before and certified by cm officer having authority under the laws of this state to take and certify affidavits,” unless there are depositions on file that prima facie prove the corréctness of the account. It will be noticed that neither in the statement at the end of tbe account nor in the judgment entry is there any intimation of a compliance with that part of the statute which we have italicized.

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

Reversed and remanded.

Dowdell, O. J., and McClellan and Mayfield ,JJ., •concur.