Raney v. Raney

80 Ala. 157

• Court: Supreme Court of Alabama
• Decided: December 15, 1885
• Status: Published

Opinion

CLOPTON, J.

The defendant pleaded, in abatement, that he was a householder of this State, and had, at the time of the commencement of the suit, a permanent residence in a county other than that in which the suit was brought. On this plea,' two issues were presented : 1st. The county of the permanent residénce; 2d. If his residence was in another county, whether he was estopped to set up such residence by his declarations to the plaintiff and his authorized attorney. The instruction of the court on the question of estoppel is the only error assigned.

The jury, by their verdict, found “ the issue against- the plea in abatement, and that the defendant was, at the commencement of this suit, a resident citizen of Macon county.” The evidence was conflicting in respect to the removal of the defendant’s residence prior to the institution of the action. Had the verdict been general in favor of the plaintiff on the plea in abatement, we would have presumed, that the charge of the court, if erroneous, operated to the injury of defendant, as it would not affirmatively appear that the verdict was founded otherwise than on the issue of estoppels. But the jury find specially, that the residence of defendant was in the county in which the suit is brought, at the time of its commencement. The case having -been determined on the one issue — the actual residence of the defendant — which fact affirmatively appears from the record, it results that, though there may have been error in the instruction of the court on the issue of estoppel, it is error without injury, and constitutes no cause for reversal. Foster v. Johnson, 70 Ala. 249; State v. Brantley, 27 Ala. 44.

Affirmed.