Russey v. Walker

32 Ala. 532

• Court: Supreme Court of Alabama
• Decided: January 15, 1858
• Status: Published

Opinion

STONE, J.

The case of Savage v. Benham, 17 Ala. 119, asserts a principle which fully sustains the decree pronounced by the chancellor in this cause.

It may be contended, that the authority of Savage v. Benham was materially shaken, if not overturned, by the case of Grady v. Robinson, 28 Ala. 289. Such was not its intention. In that case, the facts with which the defendant “ accompanied and linked his seeming denial, and upon which he evidently based it, not only deprived it of all force as a real denial; but amounted virtually to an admission ” of the material averment. In this case, there is a general denial; insufficient, it is true, if it had been excepted to; but not “accompanied” by, or “linked ” with any qualifying facts or statements, upon which the denial is based! The two cases are reconcilable.

With this explanatory statement we adopt the opinion of the chancellor, except in the character of the decree dismissing the complainant’s bill.

The decree of the chancellor is reversed, and a decree tere rendered, dismissing tte complainants’ bill, without prejudice to their right to file another bill, should they elect to do so. Let the appellants pay the costs of this appeal.

Walker, J., not sitting.